THE INTERDEPENDENCY OF HUMAN RIGHTS AS A SOLUTION TO THE PROSTITUTION DEBATE
Anne Dagenais Guertin
Major research paper submitted to the Faculty of Graduate Studies under the requirements of the LL.M. program
Faculty of Law University of Ottawa
People choose, but not under circumstances of their own choosing.
Inspired by Karl Marx, The Eighteenth Brumaire of Louis Bonaparte
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TABLE OF CONTENT
LIST OF ACRONYMS...... iii SUMMARY/RÉSUMÉ...... iv THANKS...... v PRELIMINARY INFORMATION...... vi INTRODUCTION...... 1 CHAPTER 1: The Abolitionist and Pro Sex Work Impasse...... 4 1.1 A Brief Presentation and Critique of the Abolitionist/Pro Sex Work Debate...... 5 1.2 The History and Influence of Abolitionist and Pro Sex Work Groups on Prostitution and Trafficking at the International Level...... 9 1.2.1 The Beginning: the Movement for the Abolition of White Slavery...... 10 1.2.1.1 A Change in Discourse: From White Slavery to Traffic...... 11 1.2.1.2 The 1949 Convention: Prostitution as Exploitation...... 12 1.2.2 Human Rights Critique of the First Generation of International Instruments against Trafficking...... 14 1.2.3 Prostitutes Organize: The Birth of the International Pro Sex Work Movement...... 15 1.2.3.1 Towards a New Perspective: from the Abolitionist to the Pro Sex Work Stance...... 16 1.2.3.2 The Distinction Between Voluntary and Forced Prostitution...... 17 1.2.3.3 Prostitution as Work: A Report from the International Labour Organization...... 21 1.2.4 The Middle Ground: The Adoption of the Palermo Convention and Protocol...... 23 1.2.5 The Report of the Special Rapporteur on the Human Rights of Victims of Trafficking: Confusion between Prostitution and Trafficking...... 26 1.2.6 Sex Work and HIV/AIDS: The Struggle for Discourse Dominance within UNAIDS...... 28 1.2.7 The Need for a Coherent International Approach to Prostitution...... 32 1.3 Overcoming the Impasse: Finding Common Ground through the Struggle for the Empowerment of Marginalized Workers...... 33 ii
CHAPTER 2: The Interdependence of Human Rights as a Solution to the Prostitution Impasse...... 37 2.1 From Research to Research to Inaction: Canada 1970-2011...... 39
2.1.1 The Fraser Report...... 39
2.1.2 Studies and Reports on the Street Prostitution/Solicitation Provision...... 41
2.1.3 Bedford: the Charter Challenge to Three Prostitution-Related Provisions...... 42
2.2 The Right to Security...... 44
2.2.1 Bedford: Working Indoors to Ensure Security...... 44
2.2.1.1 Justice Himel’s Reasons...... 45
2.2.1.2 The Principles of Fundamental Justice...... 45
2.2.2 The Limits of the Concept of Security in Bedford...... 50
2.2.3 Justice Arbour’s Dissident Opinion in Gosselin: The Lack of Government Intervention as Violation of the Right to Security...... 55
2.2.4 Morgentaler and the Right to Engage in Prostitution...... 58
2.3 The Right to Liberty...... 60
2.3.1 Morgentaler and the Negative Conception of the Right to Liberty...... 60
2.3.2 Moving Away from the “Liberty-Equality Dilemma”...... 65
2.3.3 The Right to Liberty: From Non-Intervention to Enhancing Choice...... 67
2.4 The Right to Equality...... 70
2.4.1 Substantive Equality: Origins and Definition...... 71
2.4.2 Substantive Equality and Neoliberal Climate: A Losing Combination...... 73
2.4.3 Gosselin and the Limits of the Language of Choice...... 74
2.4.4 A Call for a More Complex Understanding of Choice...... 75
2.4.5 Substantive Equality to Alleviate Poverty: Implications for Prostitution...... 78 CONCLUSION...... 80 BIBLIOGRAPHY...... 83 APPENDIX I...... 96 iii
LIST OF ACRONYMS
CATW Coalition Against Trafficking in Women
CEDAW Convention on the Elimination of all Forms of Discrimination against Women
CLES Concertation des Luttes contre l’Exploitation Sexuelle
GF Governance Feminism
ICRP International Committee for Prostitutes’ Rights
ILO International Labour Organization
GAATW Global Alliance Against Trafficking in Women
GABRIELA General Assembly Binding women for Reforms, Integrity, Equality, Leadership, and Action
HIV/AIDS Human Immunodeficiency Virus/Acquired Immunodeficiency Syndrome
NGO Non-Governmental Organization
NSWP Network of Sex Work Projects
PACE Parliamentary Assembly – Council of Europe
SPOC Sex Professionals of Canada
STI Sexually Transmitted Infection
UN United Nations
UNAIDS Joint United Nations Programme on HIV/AIDS
UNESCO United Nations Educational, Scientific and Cultural Organization
WHO World Health Organization
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SUMMARY
The feminist movement is divided on the issue of prostitution between the abolitionists and the pro sex work advocates. The former claim prostitution is exploitation and that prostituted people are victims, and the latter contend that prostitution is work and that sex workers are free agents. Both movements strive to occupy the entire discursive and legal spaces at the international and the national levels. This division has hindered real improvements in the lives and work conditions of prostitutes. We need to move beyond this impasse in order to positively transform prostitutes’ situations. In order to do so, we need to take into account the diverse identities, realities and needs of prostitutes in the legal realm. Through this paper, I will present the abolitionist/pro sex work debate in the international arena and an example of its manifestation in Canada, the Bedford case. Then, as a solution to this impasse, I will advocate for an approach focused on the positive role of the state, a renewed feminist solidarity for sex workers and the interdependency of human rights, such as the rights to security, liberty and equality. I contend that only by viewing people who sell sex as rights’ holders can we guarantee that the most vulnerable as well as the most privileged among them will be fully protected and empowered by the law.
RÉSUMÉ
Le mouvement féministe est divisé entre les abolitionnistes et les partisan.es pro travail du sexe sur la question de la prostitution. Les premières considèrent que la prostitution constitue de l’exploitation et que les personnes prostituées sont des victimes; alors que les secondes soutiennent que la prostitution est un travail et que les travailleur.ses du sexe sont des agents libres. Les deux mouvements tentent d’occuper les espaces discursifs et légaux tant au niveau international que national. Cette division empêche de réelles améliorations dans la vie et dans les conditions de travail des prostitué.es. Nous devons donc aller au-delà de cette impasse en vue de transformer positivement la situation des prostituté.es. Pour ce faire, nous devons prendre en compte la diversité des identités, des réalités et des besoins des prostitué.es dans le domaine juridique. Au cours de ce mémoire, je présenterai le débat abolitionniste/pro travail du sexe dans l’arène internationale en l’illustrant d’une manifestation au Canada, soit l’affaire Bedford. Puis, comme solution à cette impasse, je développerai une approche centrée sur le rôle positif de l'état, sur une solidarité féministe renouvelée pour les travailleur.ses du sexe et sur l’interdépendance des droits de la personne, tels que les droits à la sécurité, à la liberté et à l’égalité. Je soutiens que ce n’est qu’en reconnaissant les personnes qui vendent des services sexuels comme titulaires de droits que nous pourrons garantir la réelle protection et l’empowerment (agentivité) des plus vulnérables (ainsi que des plus privilégié.es) en recourant à la loi. v
THANKS
I would like to thank Professor Lucie Lamarche and Benoît Frate for their advice and guidance; Andrée Dagenais, Bill Ewanick and Pierre Guertin for their support; Sophie Thériault, Marie-Ève Sylvestre, Murielle Paradelle and Pascale Fournier for their encouragement; and all of you for believing in me. I would also like to thank the Human Rights Research and Education Center of the University of Ottawa for providing support and a great working environment.
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PRELIMINARY INFORMATION
I graduated from the University of Montreal with a B.A. in International Studies and then completed a certificate in Women’s Studies at Concordia University. I was accepted in the LL.M. program at the University of Ottawa in 2010 and I chose the Law and Social Justice Concentration. The final version of this major research paper has been submitted to my supervisor the day the Ontario Court of Appeal rendered its decision in the Bedford case (2012 ONCA 186). Although my paper takes into account the Ontario Superior Court decision of 2010 in Bedford, its main focus is not an in-depth analysis of this decision which rather served as an enlightened and enlightening pretext. Many believe that the Bedford decision will be permitted a leave for appeal by the Supreme Court of Canada as the non-unanimous decision expresses deference for the 1990 Supreme Court decision in the Prostitution Reference. For all those reasons the paper does not take into account the recent Ontario Court of Appeal decision. Finally, I would like to inform the readers that the citation system used in this paper is the one proposed in the 7th Edition of the Canadian Guide to Uniform Legal Citation.
INTRODUCTION
Through my feminist activism in Montreal, I have been in contact with both feminist positions regarding prostitution: the pro sex work and the abolitionist stances. After attending a workshop given by Stella1, a pro sex work organization, and another by la CLES2, an abolitionist group, in order to forge an informed opinion for myself on prostitution, I came to realize that I was not satisfied with either position. Several arguments I have heard were at best demagogic and paternalistic, and at worst potentially damaging for people who sell sex. I have also experienced pressure from both camps to adhere to their vision but I could not find any activist space where my questions could be expressed, let alone answered. Feminists have been divided around the issue of prostitution since the beginning of the movement. As I have written above, there are two factions: the abolitionist and the pro sex work advocates. The first group argues that prostitution is violence against women and that the only way to deal with it is to decriminalize the sale of sex and criminalize the purchase of sex, much like the Swedish legal model on prostitution. The second group asserts that prostitution is labour and that therefore sex workers should have the same rights and benefits as other workers. In order to be strategic in the struggles to achieve their respective goals, the discourses around prostitution are often simplistic, do not represent the multiple realities existing in the sex industry, and ultimately do more harm than good. Through the strong lobbying, this division, along with its shortcomings, has been transferred to the legal realm, at the international and the national levels. My paper will examine this impasse around the prostitution question in the United Nations (UN) and Canada and, in an effort to overcome this standstill for the benefit of prostitutes, I will explore the interdependency of human rights as a different perspective on prostitution. In the first chapter, I will analyze the pro sex work and abolitionist impasse. First, I will present and criticize the debate between the two philosophies. Second, I will examine the international law of human trafficking in order to illustrate the dichotomy around the issue of prostitution at the international level. I am aware that trafficking does not only pertain to prostitution and that prostitution should not be reduced to trafficking. However, in international law, prostitution is often associated with trafficking in a narrow and problematic way, as I will
1 Stella, Home, online: Stella
3 Bedford v Canada, [2010] ONSC 4264 (available on CanLII) [Bedford]. 4 Gosselin v Québec (Attorney General), 2002 SCC 84, [2002] 4 SCR 429 [Gosselin]. 5 R v Morgentaler, [1988] 1 SCR 30, 63 OR (2d) 281 [Morgentaler cited to SCR]. 3 potential of substantive equality for the eradication of poverty and its positive implications for prostitution. I argue that if our goal is the protection and empowerment of prostitutes inside and outside the trade, somewhat of a consensus must be attained. Feminists must stand in solidarity with prostitutes and nations must consider criminal law as a measure of last resort. We thus need to turn to a human rights interdependency approach based on the recognition of the diverse identities and realities of prostitutes, the positive role of the state, and the participation of prostitutes in the drafting of policies around prostitution. I would also like to offer a note on terminology. When referring to the abolitionist position, I will use the term “prostituted women”. When referring to the pro sex work discourse, I will use the expression “sex worker”. When neither positions is being discussed, and since this paper is focused solely on physical-contact sexual services, I will use the words “prostitution”, “prostitute” and “people who sell sex”. This choice has been made for the lack of a better alternative to express the many realities and identities in the sex trade. Several people who sell sex do not identify as sex workers or as prostituted people. The term “prostitute” is to be understood here as “one who solicits and accepts payment for sex acts”6 and is in no way to be understood as pejorative or as rejecting the validity of other self-assigned identities. I will also only be concentrating on adult prostitution, unless stated otherwise. Finally, while I am aware of the diverse sexual identities of people who sell sex, most of the literature focuses primarily on female prostitution since the evidence establishes that the majority of prostitutes are women7. Consequently, my paper will often refer to prostitution in terms of a women’s issue but the human rights interdependency approach which I will develop is meant to be all encompassing and applies to all people who sell sex.
6 Gregg Aronson, “Seeking a Consolidated Feminist Voice for Prostitution in the US” (2006) 3:3 Rutgers Journal of Law & Urban Policy 357. 7 In this paper, the term “women” is in reference to ciswomen. A ciswoman, shorthand for “cissexual woman” or “cisgender woman”, is a non-transsexual woman – a woman whose assigned gender is female, and whose assigned female gender is more or less consistent with her personal sense of self. This distinguishes her from transwomen, shorthand for “transsexual women” or “transgender women” – women who were initially assigned a male gender, but have a female identity. If you identify as a woman but are not a transwoman, you are a ciswoman. Tom Head, Definition of Ciswoman, online: About.com
CHAPTER 1 The Abolitionist and Pro Sex Work Impasse
According to Ethan Nadelmann, law and international regimes tend to reflect the economic and political interests of the dominant members of the international community. He adds that we must also take into account moral and emotional factors, such as religious beliefs, conscience, paternalism, fear, prejudices and the compulsion to proselytize, in the designing and the evolution of international norms, especially when it comes to prohibition regimes.8 In my opinion, this is a proper description of the factors influencing the debate and the lobbying around prostitution and trafficking at the international level. According to Janet Halley et al, feminist achievements at the international level have become sufficiently institutionalized to be described as Governance Feminism (GF). Halley defines GF as the “incremental but by now quite noticeable installation of feminists and feminist ideas in actual legal-institutional power.”9 It takes different shapes, and some trends of feminism participate more whereas others are absent. Even though it is important not to overestimate their influence, feminists are not powerless spectators. GF is a complex assemblage of horizontal power strategies. It is multiple, mobile, and fragmented. It intervenes in existing forms of power such as governmental bureaucratic institutions as well as non-governmental organizations.10 The participation of feminists in the development of instruments, reports and policies around trafficking, especially around trafficking for sexual exploitation, is a perfect example of GF: a “feminism that seeks not only to analyze and critique the problem, but to devise, pursue and achieve reform to address the problem in the real world.”11 According to Halley, the central question with respect to sex trafficking is the relationship between prostitution and trafficking and the issue of consent in determining a woman’s participation in prostitution: is prostitution always a form of trafficking or is it possible for a woman (or anyone) to really choose this as work? The answers to these questions fall into two camps that are opposite in their understanding
8 Ethan A. Nadelmann, “Global Prohibition Regimes: The Evolution of Norms in International Society” (1990) 44:4 International Organization 479 at 480. 9 Janet Halley et al, “From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism” (2006) 29 Harv JL & Gender 336 at 340. 10 Ibid at 340-41. 11 Ibid at 348. 5 of prostitution and their legal approach to the issue: the abolitionist camp and the pro sex work camp. In this chapter, I will offer a brief presentation of both the pro sex work and the abolitionist camps, and a critique of the debate between them. I will then present the history of the abolitionist and pro sex work global movements. Through this history I will illustrate the respective influence of both movements on the treatment of prostitution and the drafting of international instruments against trafficking in order to demonstrate the dilemma surrounding the prostitution question at the international level. Furthermore, I will introduce a human rights critique of the first generation of international instruments against trafficking, present the conceptual distinction between voluntary and forced prostitution, examine the confusion between prostitution and trafficking, and offer an example of the battle between the abolitionists and pro sex work advocates for the dominance of the discursive space within one UN organ, UNAIDS. Finally, I will present a call for a different approach to prostitution based on a renewed feminist solidarity for sex workers, and the struggle for human rights and the empowerment of poor workers in general, away from state and criminal repression. In the next section, I will briefly present and critique the main arguments forming the debate between abolitionists and pro sex work activists.
1.1 A Brief Presentation and Critique of the Abolitionist/Pro Sex Work Debate According to Michelle Madden Dempsey, there exist two positions regarding prostitution. The first group are the non-abolitionists (who seek to stop sex trafficking but not prostitution) and the second are the abolitionists (who want to abolish both)12. I will focus on feminist abolitionists. This movement generally advocates for the “Swedish model”13 which consists of:
12 Abolitionists are sometimes also referred to as Neo-Abolitionists to differentiate them from the anti-black slavery movement, the movement for the abolition of the prison system, and/or the prostitution abolitionist stance defined by Leo Platvoet, Rapporteur for the Committee on Equal Opportunities for Women and Men of the Parliamentary Assembly of the Council of Europe: “Abolitionism as a concept stems from the debate that took place among the medical profession after regulationism failed to stop the spread of sexually transmitted diseases, giving rise to the International Convention of 2 December 1949 (the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others) […]”. Leo Platvoet, Prostitution – which stance to take, online: PACE
social-welfare policies that assist people in exiting and avoiding prostitution; public education campaigns to raise awareness of the harms experienced by prostituted people and to change social norms that support sex trafficking and prostitution; and criminal law reforms that penalize trafficking, pimping, and the purchase of sex, while decriminalizing the sale of sex.14 The movement has also offered a critical analysis of prostitution and uncovered existing power dynamics and patterns of sexist, racist, classist, colonialist and imperialist oppression within the sex industry. However, according to Suzanne Bouclin, it is problematic for several reasons.15 First, abolitionists use a very emotive language that stifles any attempts by feminist theorists and activists to define prostitution on different terms than those they propose. For example, Bouclin argues, feminists who are critical of the institution of prostitution but are also critical of the abolitionist stance are therefore considered part of the problem, accomplices to clients, pimps and traffickers (the abusers of prostituted people), and are accused of “tricking”16 women and reducing prostitution to an academic question when it is “more like gang rape than anything else.”17 Second, sex workers rights’ advocates argue that feminist abolitionists draw on the worst available examples of violence in the sex trades18 and make generalized claims about prostitution. In much of the abolitionist research, anecdotal evidence is presented as conclusive and counter-claims are ignored or dismissed.19 Justice Susan Himel in Bedford, gave less value paper presented at the International Workshop: Decriminalizing Prostitution and Beyond: Practical Experiences and Challenges. The Hague, March 3 and 4, 2011, online: Petra Ostergren
20 Bedford, supra note 3 at paras 182-83 and 352-58. 21 Bouclin, supra note 15 at 16. 22 UNAIDS Advisory Group on HIV and Sex Work, Report (Geneva: UNAIDS, 2011) at 17 [Advisory Group]. 23 Wendy Lyon, UNAIDS Advisory Group condemns Swedish sex purchase ban, online: Feminist Ire,
24 Dempsey, supra note 14 at 1746. False consciousness is defined as 1) A Marxist theory that people are unable to see things, especially exploitation, oppression, and social relations, as they really are; the hypothesized inability of the human mind to develop a sophisticated awareness of how it is developed and shaped by circumstances; 2) Any belief or view that prevents a person from being able to understand the true nature of a situation. Dictionary.com, False Consciousness, online: Dictionary.com
1.2 The History and Influence of Abolitionist and Pro Sex Work Groups on Prostitution and Trafficking at the International Level As I have mentioned in my introduction, there is an association in international law between prostitution, sexual exploitation and trafficking in women and children. In fact, when human trafficking is discussed, it generally is in reference to trafficking for sexual purposes, even though this only describes a portion of traffic cases. Thus, the first international documents mentioning prostitution and sexual exploitation are those about “white slave traffic” or “white slavery”. The term refers to the trafficking of white women for purpose of prostitution in opposition to the trafficking of black people for the purpose of forced labour. At the turn of the 20th century, a social panic regarding trafficking and the “seduction” of white women appears, fueled by the work of the new and strong abolitionist movement, forcing states to organize.31 In this section, I will retrace the history of the abolitionist and pro sex work movements at the international level. The abolitionist movement appeared first; sex workers started to organize on a global scale several decades later. I will also present the influence of both movements on the drafting of international instruments and the treatment of prostitution. In order to do so, I will examine the first instruments on white slavery, the more recent anti-trafficking treaties, several reports by Special Rapporteurs and specialized organs on trafficking and violence against women, and some documents produced by UN agencies such as the International Labour Organization and UNAIDS. I will also explore the distinction between voluntary and forced
30 Jane Scoular, “The ‘subject’ of prostitution. Interpreting the discursive, symbolic and material position of sex/work in feminist theory” (2004) 5:3 Feminist Theory 343 at 347, referring to Michel Foucault, The History of Sexuality, Vol. 1 (New York: Random House, 1978). 31 Halley et al, supra note 9 at 354. 10 prostitution, introduce a human rights critique of the first generation of instruments against trafficking and advocate for a coherent international approach to prostitution.
1.2.1 The Beginning: the Movement for the Abolition of White Slavery Nadelmann traces the origin of the abolitionist movement back to the second half of the 19th century. At that time, the movement struggled for the abolition of “white slavery”, which the author defines as the European and American system of legalized prostitution. The abolitionists saw this system as institutionalizing the oppression and the “corruption” of women and as inefficient in inhibiting the propagation of sexually transmitted infections (STIs).32 The movement, led by “transnational moral entrepreneurs” rather than governments, spread at the international level in order to gain more allies and to hinder the International Medical Congress’ activism for a better control of venereal diseases through the global legalization of prostitution. The “reformist” movement was represented by Josephine Butler, who founded the British, Continental and General Abolitionist Federation in 1875. Convinced of the immorality of prostitution and the impossibility for women to choose it as work, journalists, novelists and reform activists went on a crusade for “social purity” and against trafficking which, according to several researchers, was a much smaller phenomenon than what was presented.33 According to Nadelmann, the internationalisation of the movement was not only a consequence of the popular image of young poor white women tricked or forced into prostitution abroad, but also a lesson learned from the struggle to abolish black slavery: fighting trafficking at the international level allowed for a more efficient struggle against all forms of sex trade, including legalized prostitution at the national level.34 The abolitionist movement was successful in securing the support of governments at the international level, which led to several conferences and agreements such as the International Agreement for the Suppression of the White Slave Traffic35 signed in Paris in 1904. In this
32 Nadelmann, supra note 8 at 513-14. 33 Ibid at 514. Rosen argues that the leading study of prostitution during the mid-nineteenth century, William Sanger’s History of Prostitution: Its Extent, Causes, and Effects Throughout the World, “supported growing xenophobic attitudes [in following decades] by underscoring that most prostitutes were recent immigrants.” See Ruth Rosen, The Lost Sisterhood: Prostitution in America, 1900-1918 (Baltimore: Johns Hopkins University Press, 1982) at 10. 34 Nadelmann, supra note 8 at 515. 35 International Agreement for the Suppression of the White Slave Traffic, 18 May 1904, 1 LNTS 83 [1904 Agreement]. 11 document, the states are “[...] being desirous of securing to women of full age who have suffered abuse or compulsion, as also to women and girls under age, effective protection against the criminal traffic known as the ‘White Slave Traffic’ [...]”. The 1904 Agreement being inefficient, several states sign in 1910 the International Convention for the Suppression of the White Slave Traffic36 which stipulates at article 1 that [w]hoever, in order to gratify the passions of another person, has procured, enticed, or led away, even with her consent, a woman or girl under age, for immoral purposes, shall be punished, notwithstanding that the various acts constituting the offence may have been committed in different countries. Whereas the 1904 Agreement aimed at protecting, in very vague terms, women and girls from white slavery, states committed, in the 1910 Convention, to punish those responsible for this trade. This instrument did not require the use of force to define procurement and was applied within national boundaries. The irrelevance of consent and of the means used for recruiting minors was also introduced.37 According to Gail Pheterson, the creation of a global regime against the white slave trade accomplished, in the final analysis, relatively little toward its objectives. Regime proponents who sought primarily to improve the conditions of prostitutes met largely with failure.38 Those who were concerned primarily with outlawing prostitution proved somewhat more successful, but the creation of this regime, unlike the creation of the regimes against black slavery and the illicit drug trades, was not followed by the enactment of legislation prohibiting the activity in all or even the great majority of states.39
1.2.1.1 A Change in Discourse: From White Slavery to Traffic As times change, discourses change as well: the term “white slavery” is replaced by the less racist term of trafficking in women and children. Two new conventions, supporting the preceding instruments, are thus adopted by the League of Nations: the International Convention for the Suppression of the Traffic in Women and Children40 in 1921 and the
36 International Convention for the Suppression of the White Slave Traffic, 4 May 1910, 98 UNTS 101 [1910 Convention]. 37 Anne T. Gallagher, The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010) at 57. 38 Gail Pheterson, ed, A Vindication of the Rights of Whores (Seattle: Seal Press, 1989) at 12. 39 Nadelmann, supra note 8 at 515. 40 International Convention for the Suppression of the Traffic in Women and Children, 30 September 1921, 9 LNTS 415 [1921 Convention]. 12
International Convention for the Suppression of the Traffic in Women of Full Age41 in 1933. The 1933 Convention expanded the end results of trafficking to include all sexual and immoral purposes, not just prostitution. The notion of consent was completely eliminated, for adults as well as children, and the cross-border requirement was removed regarding the offenses of procurement, enticement, or leading away, thus regulating certain activities in the country of origin. Anne T. Gallagher notes that the four instruments mentioned above “carefully preserved the authority of those states that had chosen to regulate internal prostitution.”42
1.2.1.2 The 1949 Convention: Prostitution as Exploitation The first document containing an explicit mention of prostitution, which it clearly characterizes as a form of exploitation, is the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others43 approved by the UN General Assembly in 1949. In fact, the entire instrument is limited to trafficking for sexual exploitation and prostitution, making an issue that was until then considered of national jurisdiction a matter of international regulation. The preamble stipulates that “prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community […]”. The first article repeats the state obligation to punish those responsible included in the 1910, 1921 and 1933 Conventions, and includes the irrelevance of consent found in the 1933 Convention, but applies the instrument to both men and women in its use of the word “person”.44 In the 1949 Convention, prostitution is always considered to be a form of sexual exploitation; which is coherent with the abolitionist position. Article 2 also introduces a new provision prohibiting brothels. However, article 12 stipulates that “the present Convention does not affect the principle that the offences to which it refers shall in each state be defined, prosecuted and punished in conformity with its domestic law.” Therefore, States Parties can
41 International Convention for the Suppression of the Traffic in Women of Full Age, 11 October 1933, 150 LNTS 431 [1933 Convention]. 42 Gallagher, supra note 37 at 58. 43 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 2 December 1949, 96 UNTS 271[1949 Convention]. 44 Ibid at article 1: The Parties to the present Convention agree to punish any person who, to gratify the passions of another: (1) Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; (2) Exploits the prostitution of another person, even with the consent of that person. 13 choose their preferred legal model to regulate prostitution, including legalization45 and decriminalization46, models that are in accordance with a pro sex work stance. The 1949 Convention does not prohibit prostitution per se nor demand its criminalization, instead only requiring States Parties to take social and economic measures aimed at preventing prostitution. According to Gallagher, this seemingly contradictory position was most likely an attempt to ensure the widest possible ratification.47 Even if the 1949 Convention still has many supporters, it also has several detractors. Numerous human rights activists and many states have criticized it for not focusing sufficiently on the more serious, coercive and contemporary forms of sexual exploitation, for failing to differentiate between consensual and forced prostitution, and for not providing protection against the coerced or fraudulent movement of individuals into sectors other than prostitution.48 According to Gallagher, even those who support the abolitionist stance of the 1949 Convention have criticized it, such as the representative of UNESCO to the 1991 session of the Working Group on Contemporary Forms of Slavery who argued that the Convention is responsible for helping legitimize sexual exploitation by “obscuring the manner in which prostitution violates human rights and by ignoring the role of prostitution in the overall oppression of women in society.”49 In summary, even though all the international instruments mentioned above consider prostitution as immoral and do not operate a clear distinction between prostitution and trafficking – which is coherent with the abolitionist stance – they also carefully preserve the sovereignty of the states regarding the domestic regulation of prostitution. Nonetheless, Nadelmann writes that, around World War II, the abolitionist movement had influenced several states in adopting the
45 The term “legalization” means that sex work, the exchange of sexual services for money between consenting adults, is permitted by the law. Certain aspects of sex work can however still be criminalized and the activities surrounding it are usually highly and strictly regulated. 46 The term “decriminalization” is sometimes applied to situations of partial (de)criminalization, where the purchase of sexual services, but not the sale of sexual services, is criminalized (in the present paper, this is identified as “abolitionism”). Decriminalization in this paper refers to the comprehensive removal of criminal penalties for sex work and activities related to sex work. 47 Gallagher, supra note 37 at 59. 48 Ibid at 62. 49 UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Report of the Working Group on Contemporary Forms of Slavery on its 16th session, UNESCOR, 16th Sess, UN Doc E/CN.4/Sub.2/1991/41 (1991) at para 38. 14 prohibition model.50 In light of these observations, we can reasonably conclude that the abolitionist discourse was dominant at the international level up to this point in history.
1.2.2 A Human Rights Critique of the First Generation of International Instruments against Trafficking In February of 2000, the UN Special Rapporteur on Violence against Women, Radhika Coomaraswamy, presents her Report on trafficking in women, women’s migration and violence against women51. She points out the necessity to develop a clear definition of trafficking, which she argues is absent from international law. She also outlines that trafficking can include forced prostitution but not exclusively. The Special Rapporteur has also been one of the most virulent critiques of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others: The 1949 Convention has proved ineffective in protecting the rights of trafficked women and combating trafficking. The Convention does not take a human rights approach. It does not regard women as independent actors endowed with rights and reason; rather, the Convention views them as vulnerable beings in need of protection from the “evils of prostitution”. As such, the 1949 Convention does very little to protect women from and provide remedies for the human rights violations committed in the course of trafficking, thereby increasing trafficked women’s marginalization and vulnerability to human rights violations.52 Deborah Stienstra writes that prostitutes’ organizations use a human rights analysis, one that is based on concrete rights such as the rights to work, to health and to security, in comparison to vague concepts such as human dignity.53 For example, prostitutes’ organisations denounce the international laws against trafficking arguing that they put their lives in danger by prohibiting indoor sex work, in a clean, comfortable and safe environment, working with others, employing staff or having business partners (which are often labelled as “pimps” or “exploiters”).54 The Global Alliance Against Trafficking in Women (GAATW) based in
50 Nadelmann, supra note 8 at 515. 51 United Nations Commission on Human Rights, Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, on trafficking in women, women’s migration and violence against women, submitted in accordance with Commission on Human Rights resolution 1997/44, UNESCOR, 55th Sess, UN Doc E/CN.4/2000/68, (2000). 52 Ibid at para 22. 53 Deborah Stienstra, “Madonna/Whore, Pimp/Protector: International Law and Organization Related to Prostitution” (1996) 51 Studies in Political Economy 183 at 204. 54 Ibid. 15
Thailand objects to international instruments against trafficking, among others, for “disregarding the will of adult persons engaged in prostitution” and demand that these instruments be “based on respect for human rights, specifically the right of all persons to self-determination.”55 Prostitutes even challenge the traditional interpretation of these rights since the human rights language fails to protect them and since including them would put into jeopardy the “protection of women, public order, health, morality, and the reputation of dominant persons or nations.”56 In the next section, I will look at the birth of the global pro sex work movement and its influence on the definition of trafficking and on the treatment of prostitution at the international level. In order to do so, I will examine the CEDAW, the 1949 Geneva Convention (IV), the Declaration on the Elimination of all Forms of Discrimination against Women and the Beijing Declaration and Platform of Action.
1.2.3 Prostitutes Organize: The Birth of the International Pro Sex Work Movement During the 1970s, American and European prostitutes started to organize. They formed the International Committee for Prostitutes’ Rights (ICPR) in 1985 and held two World Whores’ Congresses, the first one in 1985 in Amsterdam and the second one in Brussels in 1986. The second conference was the site of the foundation of the first World Chapter for Prostitutes’ Rights57. Gail Pheterson, rapporteur on the two congresses and co-director of ICPR, noted that white Western sex workers dominated the two Congresses. Third World prostitutes were however organizing in their own countries and slowly became a truly international movement with the foundation in 1991 of the Network of Sex Work Projects (NSWP) in the Asian and Pacific region. It includes today at least forty different projects and groups around the world.58 The international AIDS conferences of the 1990s also offered an opportunity for sex workers from around the globe to get together, and the 1995 UN Fourth World Conference on Women in Beijing drew various international sex workers’ rights activists, many of whom formed a united
55 GAATW & Dutch Foundation Against Trafficking in Women, A Proposal to Replace the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (Utretch: GAATW, 1994) at paras II.2 and III.3, cited in Jo Doezema, “Forced to Choose: Beyond the Voluntary v. Forced Prostitution Dichomoty” in Jo Doezema & Kamala Kempadoo, eds, Global Sex Workers: Rights, Resistance, and Redefinition (New York: Routledge, 1998) 34 at 37. 56 Pheterson, supra note 38 at 103. 57 Stienstra, supra note 53 at 204. 58 Kamala Kempadoo, “Introduction: Globalizing Sex Workers’ Rights” in Kamala Kempadoo & Jo Doezema, eds, Global Sex Workers. Rights, Resistance, and Redefinition (London: Routledge, 1998) 1 at 20. 16 delegation, spearheaded by the NWSP.59 In the next sections, we will see how a pro sex work position came to slowly albeit imperfectly replace the dominant abolitionist discourse at the international level, partly due to the lobbying work of the global sex workers’ rights movement.
1.2.3.1 Towards a New Perspective: from the Abolitionist to the Pro Sex Work Stance It would seem that even before the International Committee for Prostitutes’ Rights, a shift towards a more pro sex work stance was already taking place at the UN with the adoption by the General Assembly of the Convention for the Elimination of all Forms of Discrimination against Women60 (CEDAW) in 1979. Article 6 mandates State Parties to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” According to Gallagher, the vagueness of this article – what are appropriate measures? What are all the forms of traffic in women? What does exploitation of prostitution mean? – and the unavailability of the travaux préparatoires make it difficult for State Parties to know what are their obligations. She adds however that the CEDAW Convention is different from the preceding international instruments on trafficking in several ways. The focus on the “exploitation of prostitution”, in opposition to the focus on “prostitution”, can be interpreted as an implicit rejection of the abolitionist position.61 The work of Lars Adam Rehof on the travaux préparatoires seems to be supporting this affirmation. An oral amendment proposed by Morocco which called for the suppression of prostitution in addition to the suppression of the exploitation of prostitution was rejected suggesting that a distinction was to be made between the two concepts.62 Also, the CEDAW Convention requires State Parties to address the underlying causes of trafficking and exploitation of prostitution, such as poverty and unemployment, not only the results. The mention of “all forms of trafficking”, such as “sex tourism, the recruitment of domestic labour from developing countries to work in developed countries and organized marriages between women from developing countries and
59 Ibid at 22. 60 Convention for the Elimination of all Forms of Discrimination against Women, 18 December 1979, 1249 UNTS 13, [CEDAW]. 61 Gallagher, supra note 37 at 64-65. 62 Lars Adam Rehof, Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of all Forms of Discrimination against Women (Dordretch, The Netherlands: Kluwer Academic Publishers, 1993) at 91. 17 foreign nationals”63, is also more inclusive than preceding definitions of trafficking. It was also recognized in General Recommendation No 19 that “prostitutes are especially vulnerable to violence because their status, which may be unlawful, tends to marginalize them”64; a statement generally associated with the pro sex work stance. Abolitionists usually believe that the legal regime has little to do with making prostitutes vulnerable, and that it is rather prostitution itself that is violence against women since it allows men to purchase women as sexual commodities.65 According to Doezema, a clear shift has operated with the work of the CEDAW Committee because, even though it does not distinguish explicitly between voluntary and forced prostitution, it “focuses on the prostitute as a subject whose rights can be violated […] rather than focusing on repressive measures to eliminate the practice of prostitution.”66 In the next section, I will examine in more details this distinction between voluntary and forced prostitution that prostitutes’ organizations are advocating for in the drafting of international anti-trafficking instruments.
1.2.3.2 The Distinction between Voluntary and Forced Prostitution According to Stienstra, the arguments of the prostitutes’ movement are anchored in liberal individualism which advocates that prostitutes who choose this work should have the same rights and benefits than other workers and citizens. They also recognize that not all women enter prostitution freely and that we should all fight against trafficking in women and children.67 Thus, in response to feminists (and others) who see all prostitution as abusive, they have developed the distinction between voluntary and coerced prostitution.68 As prostitution is rarely defined as work in the UN documents, I have resorted to identify the distinction between voluntary and forced, enforced or coerced prostitution as a sign of the influence of pro sex work groups at the international level. Thus, in this section, I will analyze the different instruments which include this distinction: the 1949 Geneva Convention (IV), the Declaration on the Elimination of all Forms of Discrimination against Women and the Beijing Declaration and Platform of Action.
63 General Recommendation No 19: Violence against Women, UNCEDAWOR, 11th Sess, UN Doc A/47/38 (1992) at para 14. 64 Ibid at para 15. 65 Bedford, supra note 3 at paras 344-51. 66 Doezema, supra note 55 at 40. 67 Stienstra, supra note 53 at 205. 68 Doezema, supra note 55 at 37. 18
The 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War69 stipulates, at article 27, that “[w]omen shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.” It is the first UN document to implicitly distinguish between voluntary prostitution and enforced prostitution. I argue that it is unlikely that the UN of 1949 thought prostitution should be recognized as work rather than as a crime or an immoral, or at the least undesirable, activity. Therefore, we can suppose that the Geneva Convention, applying to wartime, is rather taking into account in a pragmatic way the reality of soldiers using the sexual services of prostitutes. In 1993, the General Assembly adopts the Declaration on the Elimination of Violence against Women70. Article 2b) mentions forced prostitution, thus making a distinction between voluntary and coerced prostitution. This declaration, since it is more recent and specifically about violence against women, can be said to be a progression towards the recognition of prostitution as an economic activity that women can choose, more so than the Geneva Convention. In 1995, in Beijing, took place the UN Fourth World Conference on Women. During this meeting, the Beijing Declaration and Platform for Action71 was adopted. The language of the Beijing Declaration let us believe that pro sex work groups were more influential than abolitionist groups in its drafting. As examples, the document quotes at paragraph 114b) every word of article 2b) of the 1993 Declaration seen above and, at paragraph 133, supports the Geneva Convention which are both making an implicit distinction between voluntary and coerced prostitution. Moreover, at paragraph 21, the negative impact of economic recession on women is addressed. Women often have no choice but to take employment that lacks long-term job security or involves dangerous working conditions, to work in unprotected home-based production or to be unemployed. Many women enter the labour market in under-remunerated and undervalued jobs or decide to migrate in order to improve their household income. Finally, without any reduction in their other responsibilities, this has increased the total burden of work for women. It seems to me that this can be interpreted as the UN taking into account prostitution as work under constraining circumstances. Also, sexual exploitation appears to be identified as
69 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War 1949, 75 U.N.T.S. 287 [Geneva Convention]. 70 Declaration on the Elimination of Violence against Women, UNGAOR, 1993, A/RES/48/104 [1993 Declaration]. 71 Beijing Declaration and Platform for Action, Fourth World Conference on Women, UN Doc A/CONF.177/20 (1995) [Beijing Declaration]. 19 distinct from prostitution, and enforced or forced prostitution is mentioned several times72 except when associated with child prostitution and trafficking. One could argue that this adds to the confusion between prostitution and trafficking at the international level as seems to be illustrated by the Beijing Declaration’s support, at paragraph 123, of the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others which equates, as we have seen above, trafficking with prostitution. On the other hand, in the same paragraph, the implementation of the 1949 Convention is said to need revision, and forced prostitution is mentioned again which leads to believe that the Beijing Declaration is a step forward towards the recognition of prostitution as work. At the 1995 UN Fourth World Conference on Women in Beijing, the NSWP and the GAATW lobbied to ensure that every mention of prostitution as a form of violence against women would be prefaced by the word “forced”. Doezema writes that it was impossible to introduce the concept of sex workers’ human rights at the Conference since it had not been mentioned in the draft document. Therefore, she found herself compelled to lobby for the recognition of the distinction between voluntary and forced prostitution even though she and other sex work activists had come to realize that the distinction had been used as a new justification for denying prostitutes their human rights. Doezema argues that it was pressing to examine this concept since it had replaced abolitionism as the dominant model of prostitution at the international level.73 First, she denotes that no international agreement condemns the abuse of human rights of prostitutes who were not “forced”. Although the international community is agreeing on condemning forced prostitution, this does not imply agreement on how to deal with voluntary prostitution, explains the author. She argues that it is precisely because there was no consensus on “voluntary” prostitution that the consensus on “forced” prostitution was developed as a compromise. Moreover, most organizations that support the right to self-determination place much more emphasis on stopping forced prostitution than advocating for prostitutes’ rights. It may be that it is partly felt to be the domain of sex worker organizations, but it is also easier to obtain “support for victims of evil traffickers than for challenging structures that violate sex
72 Ibid at paras 41, 114 b), 123, 133, 146b), 147f), 225. 73 Doezema, supra note 55 at 34-35. 20 workers’ human rights.”74 Doezema adds that the campaigning efforts against trafficking have been instrumental in creating a climate wherein the great majority of sex work, and almost all sex work involving women in or from developing countries, is seen as abuse. Second, prostitutes are now increasingly critical of this dichotomy between forced and voluntary prostitution since it creates false and dangerous divisions between prostitutes such as the Western empowered sex worker versus the passive Third World victim, and the guilty/voluntary versus innocent/forced prostitutes. The latter division reinforces the belief that women who transgress sexual norms (and do not want to be “saved”) deserve to be punished, thus threatening the entire concept of women’s human rights.75 To support this claim, Doezema quotes a Human Rights Watch study on Burmese women and girls trafficked into Thailand. After concluding that the “combination of debt-bondage and illegal confinement is tantamount to forced labour, which is prohibited under international law”76, the researchers added that only four of the twenty-nine women interviewed knew they were going to be prostitutes.77 Doezema rightfully questions the decision to include this information since debt-bondage and illegal confinement amount to slavery, whether or not there was an initial agreement to work as a prostitute. Thus, the innocence of the victim is seen to be highly relevant. Doezema also criticizes the “poverty as force” approach for having racist and classist implications, for implicitly rejecting the conceptualization of prostitution as a profession (no “normal” woman would choose the work unless “forced” by poverty) and for establishing the innocence of these “forced” prostitutes and thus their eligibility for human rights protection.78 Finally, Doezema writes that the campaign for sex workers’ rights began with challenging the myths surrounding prostitution and women’s sexuality, and claiming that prostitution could be a choice. Now, since the old myths are back under the guise of accepting choice, “it is time to reconsider the usefulness of ‘choice’ versus ‘force’ as the model of sex workers’ experience.”79 In summary, the Geneva Convention, the 1993 Declaration and the Beijing Declaration are signs of the influence of the pro sex work discourse and all mark a step forward towards the recognition of prostitution as work at the international level. It is arguably a small step since only
74 Ibid at 42. 75 Ibid. 76 Human Rights Watch, Global Report on Women’s Human Rights, online: Women with Disabilities Australia
1.2.3.3 Prostitution as Work: A Report from the International Labour Organization In 1998, Lin Lean Lim publishes a report for the International Labour Organization (ILO) entitled The Sex Sector: The economic and social bases of prostitution in Southeast Asia.80 This report is one of the very few documents published by a UN agency to explicitly recognize and call for the recognition of prostitution as work. First of all, Lim advocates for the distinction between child prostitution (where children are always victims) and adult prostitution (where choice is possible) in the taking into account of prostitution by the different organs of the UN. Whereas abolitionists would argue that we cannot dissociate child and adult prostitution because it is never a real choice, even for adults, I contend that it is very problematic to put women and children in the same category in a world where women’s autonomy and their capacity to make important decisions about their life is either questioned or denied, and where women are still fighting against the imposition of a minor status on themselves in different circumstances.81 Secondly, she recommends taking into account the heterogeneity and complexity of the sex industry in order to properly address the specific needs of the different groups of prostitutes. She points out that the conditions in the industry greatly vary, from excellent to abusive,
80 For an abolitionist critique of this report, see Janice G. Raymond, Legitimating Prostitution as Sex Work: UN International Labour Organization Calls for Recognition of the Sex Industry, online: CATW
Lim also encourages a non-moralistic vision distinguishing between people who sell sex and the organizational structures and relations of the industry, and imposing criminal sanctions, not against sex workers, but against those responsible for the trafficking and the violence towards them. She also mentions that prostitution is anchored in a double standard of morality for men and women, and recommends moving the focus of state measures away from the prostitutes and onto the social and economic foundations of society.83 Finally, regarding the legal treatment of prostitution, she rejects prohibition which is, according to her, unrealistic and inapplicable. Moreover, prohibition would result in the further marginalization of the most vulnerable members of the industry. Therefore, Lim supports decriminalization of prostitution, but stresses that it should not apply to institutions of the sex industry that benefit from the coercion, exploitation and abuse of women and children. According to her, decriminalization should include at a minimum the reform of discriminatory laws or laws criminalizing prostitutes because of their work, the recognition that prostitution is a legal occupation, and measures to protect the most vulnerable, such as the implementation of
82 Ibid at 212. 83 Ibid at 213. 23 health programs, exit programs or “rehabilitation” programs for those who want to exit the sex industry, and education and prevention campaigns about the possible risks of sex work.84
1.2.4 The Middle Ground: The Adoption of the Palermo Convention and Protocol In November of 2000, in Palermo, Italy, the UN General Assembly adopted through Resolution 55/25 the Convention against Transnational Organized Crime85 [Palermo Convention] and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention against Transnational Organized Crime86 [Palermo Protocol]. The general purpose of the Palermo Convention is to combat international crime. A specific purpose of the Palermo Protocol, as stated at article 2, is to prevent and combat trafficking in persons, paying particular attention to women and children; to protect and assist the victims of such trafficking, with full respect for their human rights; and to promote cooperation among States Parties in order to meet those objectives. Article 3a) defines trafficking in persons87, thus finally providing a clear definition of trafficking which absence from international law was criticized by Radhika Coomaraswamy. And article 3b) renders the consent of a victim of trafficking irrelevant where any of the means enumerated at paragraph a) have been used. According to Gallagher, the negotiations around the definition of trafficking for the drafting of the Palermo Protocol “provided the first chance in more than half a century to revisit the prostitution debate within the context of an international legal drafting process.”88 At the beginning of the negotiations, it seemed to be agreed upon that the instrument would only deal with trafficking in women and children. However, according to the travaux préparatoires, almost every participating country moved to include all persons in the definition of trafficking at
84 Ibid at 214. 85 Convention against Transnational Organized Crime, GA Res 55/25, UNGAOR, 55th Sess, UN Doc A/RES/55/25 (2000) [Palermo Convention]. 86 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention against Transnational Organized Crime, GA Res 55/25, UNGAOR, 55th Sess, UN Doc A/RES/55/25 (2000) [Palermo Protocol]. 87 Ibid at article 3(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. 88 Gallagher, supra note 37 at 25. 24 the first session of the drafting group, although it was felt that special attention should be given to the protection of women and girls.89 A focus on prevention was also added. The first substantive obstacle to agreement was the question of non-coerced adult migrant prostitution: should it be included in the definition of trafficking? Several argued that there is no such thing as voluntary prostitution and to suggest there was in this instrument would give an unfounded legitimacy to prostitution.90 This abolitionist proposition was first introduced by Argentina and subsequently held by the delegation of the Philippines and a strong NGO lobby.91 At the informal consultations held during the fifth session of the Ad Hoc Committee, the majority of the delegations suggested deleting the word “forced” before the word “prostitution” from the definition of “sexual exploitation” – which was then completely removed. Several delegations also noted that it might be difficult for victims of prostitution to prove that they had been “forced”. Other delegations did however express the view that it was essential to distinguish victims from those who had chosen to engage in prostitution.92 Nevertheless, according to Munro and Della Giusta, the UN’s intention was to “break the conceptual link between trafficking and prostitution.”93 To this effect, the UN consulted with diverse groups on the distinction between voluntary and coerced prostitution, and Doezema writes that the pro sex work groups were very active during the debates regarding the definition of trafficking. Several feminist, pro sex work and human rights organisations formed the “Human Rights Caucus” and demanded that the notion of coercion be incorporated to the definition of sex trafficking, that the importance of protecting the human rights of the trafficked persons be recognized and that the possibility of individual choice be added.94 The final and current definition of trafficking comprises three elements: action, means and purpose.95 We observe, from the travaux préparatoires, that the terms “exploitation of the prostitution of others” and “other forms of sexual exploitation” included in the purpose element of the trafficking definition were preferred to the inclusion of “use in prostitution” as a separate
89 United Nations Office on Drugs and Crime, Travaux Préparatoires of the negotiations for the elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols thereto (2006) [Travaux Préparatoires for the Organized Crime Convention and Protocols] at 380. 90 Ibid at 334. 91 Gallagher, supra note 37 at 26. 92 Travaux Préparatoires for the Organized Crime Convention and Protocols, supra note 89 at 340. 93 Vanessa E. Munro & Marina Della Giusta, Demanding Sex: Critical Reflections on the Regulation of Prostitution (Cornwall: Ashgate, 2008) at 101. 94 Halley et al, supra note 9 at 350-51. 95 Palermo Protocol, supra note 86 at article 3a). 25 end purpose in order to secure an agreed definition and maintain the integrity of the distinction between trafficking and migrant smuggling. The travaux préparatoires indicate that the issue of prostitution would only be addressed in the context of trafficking in order not to affect the way States Parties address prostitution in their domestic legislation.96 According to Gallagher, the vagueness of “sexual exploitation”, even if the term is historically linked to child prostitution in international law, could eventually be applied to adult prostitution – and even to the production, possession or use of pornography as theorized by Catharine MacKinnon97 – when associated with a broad interpretation of the means element of the trafficking definition such as “the abuse of authority or position of vulnerability”. These practices could then be defined as trafficking which would go against the intention of the drafters in her opinion.98 Also, she argues that expansionist interpretations weaken the force of the underlying legal prohibition, as it has been the case with the concept of slavery.99 For example, a large number of women are under some sort of economic compulsion to accept sub-standard working conditions or risky occupations because they simply have no alternative. Nevertheless, it is to be distinguished from forced labour or sexual exploitation, which implies actual coercion from a third party to force an individual to undertake a job or a perform a sexual act against their will.100 Several commentators argued that article 3 still holds the special relationship between trafficking and prostitution, and that the ambiguity around the notion of migrants’ initial consent to be transported from one country to another impedes the Protocol’s effectiveness as an anti- trafficking measure and allows States Parties to adopt a narrow interpretation of consent and of their responsibilities towards trafficking victims.101 In fact, at the ninth session of the Ad Hoc Committee, there was extensive discussion on whether a reference to the consent of the victims should be made in the definition of “trafficking in persons” and, if so, how it should be worded. Most delegations agreed that the consent of the victim should not, as a question of fact, be relevant to whether the victim had been “trafficked”. However, many delegations expressed legal
96 Travaux Préparatoires of the Organized Crime Convention and Protocols, supra note 89 at 347. 97 Catharine A. Mackinnon, “Pornography as Trafficking” (2004) 26 Mich J of Int’l L 993 at 1004. 98 Gallagher, supra note 37 at 38-39. 99 Ibid at 51. 100 International Labour Organization, Fighting Human Trafficking: The Forced Labour Dimensions. Background Paper prepared for the Vienna Forum on Human Trafficking, Vienna, 13-15 February, 2008, online: ILO
1.2.5 The Report of the Special Rapporteur on the Human Rights of Victims of Trafficking: Confusion between Prostitution and Trafficking In 2006, Sigma Huda, the UN Special Rapporteur on the Human Rights Aspects of Victims of Trafficking in Persons, Especially Women and Children, presented her Report on the Integration of Human Rights of Women and a Gender Perspective to the Economic and Social Council.104 It is the UN document which is the most transparent and clear in its support of the abolitionist stance, as illustrated in these two paragraphs: 83. The Swedish law that prohibits the purchase of sexual services is a particularly apt expression against the demand side of trafficking, for it not only formally condemns the use of prostituted persons, but does so in a context which
102 Travaux Préparatoires for the Organized Crime Convention and Protocols, supra note 89 at 344. 103 Marie Segrave, Sanja Milivojevic & Sharon Pickering, Sex Trafficking: International Context and Response (Cornwall: Willan Publishing, 2009) 17. 104 United Nations Commission on Human Rights, Integration of Human Rights of Women and a Gender Perspective: Report of the Special Rapporteur on the human rights aspects of the victims of trafficking in persons, especially women and children, Sigma Huda, UNESCOR, 62nd Sess, UN Doc E/CN.4/2006/62 (2006). 27
explicitly recognizes the gendered nature of the commercial sex industry: “As with all laws, the [Swedish] law has a normative function. It is a concrete and tangible expression of the belief that in Sweden woman and children are not for sale. It effectively dispels men’s self-assumed right to buy women and children for prostitution.”105
99. As noted by an NGO, it is counterproductive in practice to distinguish between demand for trafficking victims and demand for the use of prostituted persons generally: “In practice, it is extremely difficult to prove that [this distinction] is within the knowledge of the offender, especially when sexual services are involved and consequently penal prosecution is not possible.”106
The Special Rapporteur expressly refers to the Swedish model as being the best national model to reduce the demand side of trafficking107 since it is almost impossible for “offenders” to know if a prostitute is a victim of traffic or not. She advocates for the criminalization of the purchase of all sexual services, since reducing the demand for paid sex will reduce, at the same time, the demand for sex trafficking in her opinion. Let us examine another paragraph: 42. For the most part, prostitution as actually practised in the world usually does satisfy the elements of trafficking. It is rare that one finds a case in which the path to prostitution and/or a person’s experiences within prostitution do not involve, at the very least, an abuse of power and/or an abuse of vulnerability. Power and vulnerability in this context must be understood to include power disparities based on gender, race, ethnicity and poverty. Put simply, the road to prostitution and life within “the life” is rarely one marked by empowerment or adequate options.
Here, the Special Rapporteur suggests that since prostitution usually occurs in instances of trafficking that it should always be considered trafficking and thus exploitative. This is coherent with an abolitionist view of prostitution. However, one could argue that this confusion between prostitution and trafficking is problematic since the fact that possibly “most” prostitution constitutes trafficking does not mean that all prostitution is exploitative. If situations involving prostitution do not meet the definition of trafficking then they should not be treated as such. On the other hand, and as we have seen above, if situations involving prostitution are exploitative and violate prostitutes’ human rights but do not meet the criteria of trafficking, States Parties and the international community have no duty to act. Finally, as discussed in the
105 Ekberg, supra note 13 at 1205. 106 The NGO is not identified nor referenced by the Special Rapporteur. 107 For a complete analysis of the strategy of reducing the demand in trafficking, see Gallagher, supra note 37 at 433-40. 28 preceding section, it would seem counter-productive and contrary to the UN’s intention to give too broad of an interpretation to the definition of trafficking as including power disparities based on gender, race, ethnicity and poverty as means of coercion. Up to this point, I have shown the influence of both abolitionist and pro sex work movements during negotiations for the adoption of anti-trafficking instruments or by analyzing the language used in various UN documents. In the next section, I will examine several publications related to sex work and HIV/AIDS in order to illustrate the battle for discourse dominance within one UN agency, UNAIDS.
1.2.6 Sex Work and HIV/AIDS: The Struggle for Discourse Dominance within UNAIDS The last documents I have studied are all in relation to the struggle against HIV/AIDS in the context of prostitution. UNAIDS has published in 2002 a technical advisory note on HIV and sex work. The main point of the document is the need to involve sex workers in condom promotion and in safer sex outreach, and to decriminalize sex work.108 Moreover, the World Health Organization (WHO) and the Global Coalition on Women and AIDS, a project of UNAIDS, have published a short document entitled Violence against Sex Workers and HIV Prevention109, which claims that the criminalization of sex work leads to violence against prostitutes.110 Several sex workers’ rights activists have been consulted for the drafting of this document.111 Also, in 2006, UNAIDS and the Office of High Commissioner for Human Rights published the International Guidelines on HIV/AIDS and Human Rights which declares that, among other structural factors, the decriminalization of sex work is necessary to reach sex workers in the response to HIV/AIDS.112 Historically, in the struggle against STIs, prostitutes were seen as “vectors” of transmission. Consequently, public policies were aimed at sex workers in order to protect the clients and the community through forced testing for HIV, surveillance
108 UNAIDS, Technical Update: Sex work and HIV/AIDS (Geneva: UNAIDS Best Practice Collection, 2002) at 10. 109 Avni Amin, Cheryl Overs & Penelope Saunders, World Health Organization, Violence Against Sex Workers and HIV Prevention (2005) 3 Information Bulletin Series – Violence Against Women and HIV/AIDS: Critical Intersections 1. 110 Michael L. Rekart, “Sex-work harm reduction” (2005) 366 The Lancet 2123 at 2124. 111 Aziza Ahmed, “Feminism, Power, and Sex Work in the Context of HIV/AIDS: Consequences for Women’s Health” (2011) 34 Harv JL & Gender 225 at 237. 112 Office of UN High Commissioner for Human Rights & UNAIDS, International Guidelines on HIV/AIDS and Human Rights, UNAIDSOR, 2006 UN Doc HR/PUB/06/9 at 30. 29 and violence. The movement for health and human rights, including several feminist organizations, positioned themselves against such abusive measures and promoted concepts such as accessibility, acceptability, quality and affordability in the delivery of health services around the prevention and treatment of HIV/AIDS.113 With this approach, the role of people who sell sex shifted from one of recipient to one of participant in the design and implementation of health programs.114 The tide turned in 2007 and, according to Aziza Ahmed, it is due to the influence of abolitionist activists. UNAIDS published another guidance note on sex work and HIV which do not include a human rights perspective nor the sex workers’ support for decriminalization. Instead, the note focuses on alternatives to sex work and stresses the importance of reducing demand.115 A revised version of the guidance note was published in 2009. Despite the participation of sex workers throughout the revision process of the final note several elements of the abolitionist position remained, especially the equation of trafficking and prostitution, and the absence of decriminalization.116 Ahmed mentions the numerous efforts of the abolitionists for the purpose of influencing the agenda on the global struggle against HIV. For example, several abolitionists were invited at the 2006 UNAIDS Global Consultation on Sex Work and HIV/AIDS in Rio de Janeiro. Their discourse was absent from the debate on HIV and sex work within UNAIDS up until that event. Melissa Farley, a well-known feminist abolitionist, gave a lecture and spoke of “‘healing’ from prostitution”, of an “harm elimination” rather than an harm reduction approach to prostitution, and of the need to reduce demand for sex work through the criminalization of clients.117 Anna-Louise Crago reports that the United States of America sent four abolitionists to the meeting, one activist and three government employees, and that their presence was intimidating. One UN person told Crago that their boss at the head office in another country received an angry call from the US government almost immediately after they said in the meeting there was a difference between sex work and trafficking.118 A revised and
113 Ahmed, supra note 111 at 235. 114 Ibid at 236. 115 UNAIDS, Guidance Note: HIV and Sex Work (2007), online: The Evidence to Action – HIV/AIDS Data Hub
119 UNAIDS, Guidance Note: HIV and Sex Work (Geneva: UNAIDS, 2012) at 20-21. 120 Ahmed, supra note 111 at 242. 121 Advisory Group, supra note 22. 122 Don Kulick, “Sex in the new Europe: The criminalization of clients and Swedish fear of penetration” (2003) 3:2 Anthropological Theory 199 at 204; Dodillet & Östergren, supra note 13 at 22. 123 Advisory Group, supra note 22 at 16. 31
The last issue the Advisory Group examines is the economic empowerment of sex workers as a supplementary strategy and not necessarily as an alternative to sex work: Economic empowerment can be an important strategy to improve sex workers’ living and working conditions. By increasing economic options, sex workers can achieve greater financial security, which makes it easier for them to make important decisions that affect their lives. These include their choice of work and their capacity to save and plan for the future for themselves and their dependents. Improving economic options also helps sex workers to reduce the likelihood of having to accept clients’ requests for unprotected sex or that they will be put in situations that inhibit their ability to negotiate with clients and reduce the risk of violence or abuse.124 Finally, the Advisory Group offers the following recommendations regarding the criminalization of sex work: States should move away from criminalising sex work or activities associated with it. Decriminalisation of sex work should include removing criminal penalties for purchase and sale of sex, management of sex workers and brothels, and other activities related to sex work. To the degree that states retain non-criminal administrative law or regulations concerning sex work, these should be applied in ways that do not violate sex workers’ rights or dignity and that ensure their enjoyment of due process of law.125 The Advisory Group shows a clear pro sex work stance through its rejection of the Swedish model, its advocacy for supplementary economic strategies which do not aim to replace sex work, for the decriminalization of prostitution, and for the reduction of demand for unprotected paid sex rather than for all paid sex. However, it is too soon to tell if it will have any real impact on the programming. The last official UNAIDS guidance note on sex work and HIV/AIDS published in 2012 does include as an annex the Advisory Group report but with this mention: “These annexes do not necessarily represent the views of all members of the Advisory group on HIV and Sex Work, nor the stated positions, decisions or policies of the UNAIDS Secretariat or any of the UNAIDS Cosponsors.”126 Furthermore, the note does speak of reducing the demand for sex work – however not by criminalizing it as stated in the 2009 guidance note – and it does not mention once the decriminalization of sex work. We can thus conclude that the abolitionist viewpoint is dominating the discursive space within UNAIDS at this moment.
124 Ibid at 22-23. 125 Ibid at 8. 126 UNAIDS, supra note 119 at 26. 32
1.2.7 The Need for a Coherent International Approach to Prostitution Stienstra observes that despite the lobbying efforts of the abolitionist movement or the pro sex work organisations on the UN, international law on the issue of prostitution has remained the same: there is no consensus or commitment in the United Nations to an integrated and coordinated prostitution policy.127 As a result, as we have seen, the UN instruments, agencies and bodies hold different positions.128 The desire at the UN to gain as much support as possible for anti-trafficking instruments without limiting states’ power to legislate freely around prostitution seem to explain this status quo. Should we advocate for a coherent international vision and legal response to prostitution? Leaving aside speculations on the feasibility of such an objective, Gallagher argues that we need to have an internationally coherent approach to sex work in order to prevent the development of legislative exploiters’ havens.129 Moreover, according to Barbara Sullivan, the conflation of trafficking and migrant prostitution at the international level, and the overall impact of anti- trafficking campaigns on women’s human rights have been negative in various ways.130 They have resulted in the limitation of women’s mobility, by forcing them to stay home or denying the right to emigrate.131 For example, immigration officers in industrialized countries have “stereotyped young women travellers from certain countries, such as Brazil and Nigeria, as potential sex workers or victims of trafficking and used this as an excuse to impede their entry.”132 Furthermore, with the recent construction of trafficking as a problem about organized crime and increased security concerns post-9/11, anti-trafficking programmes have been absorbed into state security agendas which prioritize surveillance, immigration controls and border security over human rights.133 A certain consensus has been reached around the distinction of voluntary versus forced prostitution as a compromise to the disagreements around the way prostitution should be dealt with at the international level. However, prostitutes who are
127 Stienstra, supra note 53 at 205. 128 Doezema, supra note 55 at 41. 129 Gallagher, supra note 37 at 371. 130 Barbara Sullivan, “Trafficking in Human Beings” in Laura J. Shepherd, ed, Gender Matters in Global Politics. A Feminist Introduction to International Relations (New York: Routledge, 2010) 89 at 99. 131 Phil Marshall & Susu Thatun, “Miles Away. The Trouble with Prevention in the Greater Mekong Sub-region” in Kamala Kempadoo, ed. Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work and Human Rights (Boulder, CO: Paradigm Publishers, 2005) 43 at 51. 132 Global Alliance Against Traffic in Women, Collateral Damage. The Impact of Anti-Trafficking Measures on Human Rights around the World, online: GAATW
1.3 Overcoming the Impasse: Finding Common Ground through the Struggle for the Empowerment of Marginalized Workers According to Sylvia Federeci, it is in the interest of feminists to fight for sex workers’ rights because “if we analyze prostitution in terms of power relations structuring unprotected work in today’s global economy”135, we observe that more severe sanctions against trafficking or a free market of prostitution will not give more power to people who sell sex. These two “solutions” are insufficient in order to deal with new realities and are destined to fail. The author also points out, very pertinently, that prostitutes are often the target of attacks that harm women in general. She regrets this situation because the polarization of the feminist movement around the issue of prostitution has become a part of the problem and has put a stop to the positive feminist initiatives for prostitutes at a time when it is most needed.136 We must not forget the role played by feminism and the 1970s sexual revolution for the sex workers’ movement. They gave more power to women in their relationships with men and challenged the dominant societal norms around sexuality. These changes allowed prostitutes to organize, to make their identity public, to demand the same rights as the other workers for sexual labour that is often free within marriage, and (sometimes) to change their relations with the state, police and their clients.137 A few things need to be kept in mind on both sides in order for this partnership to work. On one hand, sex workers’ rights advocates have argued that it is arbitrary to qualify prostitution as degrading because of its sexual component whereas the alternatives in the global market
134 Doezema, supra note 55 at 46. 135 Sylvia Federeci, “Prostitution and Globalization: Notes on a Feminist Debate” in Matt Davies & Magnus Ryner, eds, Poverty and the Production of World Politics: Unprotected Workers in the Global Political Economy (Hampshire: Palgrave MacMillan, 2006) 113 at 114. 136 Ibid at 115-16. 137 Ibid at 120-22. 34
(domestic work or sweatshops) are not less dangerous or humiliating and they do not protect women from sexual violence. Moreover, they have criticized the methodology used by abolitionists in their data collection on trafficking and constraint since most of the interviewed women (arrested by the police or enrolled in drug treatment programs or exit programs) do not generally want to be associated with prostitution138. They also denounce the fact that abolitionists are often privileged women who will never have to suffer the consequences of the policies and laws they demand. Furthermore, they recommend to relativize or to eliminate the concept of choice in the analysis of prostitution because it posits that individuals can make choices free of any gender, race and class constraints.139 Finally, they argue that empowering prostitutes empowers all women, because not only the ‘whore stigma’ is a tool for disciplining all women, but also it is thanks to the struggles of foreign sex workers that many otherwise completely marginalized communities across the world are now able to survive.140 On the other hand, Federeci deplores the denial, within the sex workers’ rights’ movement, of the violence that exists in prostitution, maybe due to a fear of helping the abolitionists. The causes of this violence need to be addressed in order to stop it. Also, even though recognition of prostitution as legitimate work is essential, the author claims it is insufficient since globalization and the neoliberal economy are causing a decrease in secure employment and social entitlements such as pension, health and employment benefits and union representation in all labour areas.141 It is increasingly difficult for workers to defend existing rights, let alone to expand them. The author thus suggests that the struggle for the rights and empowerment of all workers, especially marginalized workers such as migrants and prostitutes, becomes the new common ground for abolitionists and pro sex work advocates. She claims we are in need of a “new social contract” since “communities affected by globalization have been deprived of resources that must be restored, and the structural racism that characterizes international economic relations must be eliminated.”142
138 Wendy McElroy, Prostitutes, feminists, and economic associates, online: WendyMcElroy.com
Federeci refers to Outshoorn’s work in the 1980s and 1990s which documented that whenever feminist organizations were sufficiently united to make their voices heard, the institutional debates on prostitution responded to their demands. Placing the prostitution question in the context of the growing pauperization and criminalization of a large section of the working class is essential for the impasse to be overcome.143 Federeci adds that the solution abolitionists propose – more restrictive laws against prostitution and sex trafficking – is a minefield.144 Even though, abolitionists often count on the symbolic power of the law145 in order to get rid of prostitution, Ejan Mackaay argues that the law does not directly control the behavior of citizens but only the consequences of their action.146 And in a world where attempting to escape impoverishment often comes at the price of criminalization, the boundaries between crime and resistance, and between victim and victimizer, are extremely blurred.147 So far, I have analyzed the evolution of international hard and soft law in relation to prostitution and trafficking. I believe I have demonstrated not only the ambiguities and the space left opened by this normative system, but as well, the political tensions inherent to Governance Feminism, which are mainly contained in the opposition between abolitionist and pro sex work advocates. I believe I have also demonstrated the shortcomings of the abolitionist and pro sex work positions and the need for an alternative approach to the prostitution question at the international level. In summary, the influence of the abolitionist discourse is more prominent in certain documents and the influence of the pro sex work discourse is more important in others but, in general, I conclude that their influence is similar: they did not contribute to transforming prostitutes’ human rights situation. Trafficking and prostitution are amalgamated in several documents, even when it was not the initial intention of the UN, thus agreeing with the abolitionist discourse. As we have seen, this has negative consequences on women and their
workers, is to democratize political life and create necessary conditions for dependent countries to ‘delink’ from the global economy”. 143 Federeci, supra note 135 at 134, referring to Joyce Outshoorn, ed, The Politics of Prostitution. Women’s Movements, Democratic States and the Globalization of Sex Commerce (Cambridge: Cambridge University Press, 2004). 144 Federeci, supra note 135 at 135. 145 Nadelmann, supra note 8 at 516. 146 Ejan Mackaay, L’Analyse économique du droit – I. Fondements (Montreal, Themis & Brussels: Bruylant, 2000) at 5. 147 Vincenzo Ruggiero, Crime and Markets: Essays in Anti-Criminology (Oxford: Oxford University Press, 2000), cited in Federeci, supra note 135 at 135. 36 rights, and especially Third World women, who are either treated in a paternalistic protective way or exposed to more violence. The pro sex work movement did win a battle when the difference between voluntary and forced prostitution was integrated to the most recent UN instruments. However, the violations of prostitutes’ human rights are not addressed at the international level if they have not occurred in the context of trafficking. Furthermore, the pro sex work discourse often solely focuses on work conditions and the fundamental freedom to work at the expense of a more interdependent approach to all human rights. It seems that dominating the discursive space, with the “right” morally constructed conception of prostitution, has become more important than the protection of prostitutes’ and women’s human rights. In a world (de)structured by a neoliberal economy, it is urgent to complexify the issue of prostitution, to go beyond moral and emotional considerations, and to rethink state repression of prostitution for much needed solidarity with sex workers. A unified vision of prostitutes’ rights focusing on the interdependency of human rights, such as the rights to security, liberty and equality, is worth being explored. If our goal is the protection and empowerment of prostitutes, and of women in general, that may be the most productive and effective approach. I will explore this perspective in the next chapter.
37
CHAPTER 2 The Interdependency of Human Rights as a Solution to the Prostitution Impasse
Identities of people who sell sex are multiple. As we have seen in chapter 1, the abolitionist and pro sex work movements have respectively assigned prostitutes the identities of victim and free agent in order to win battles at the international level. This common strategy has created a polarized debate which has had negative consequences since many prostitutes do not fit in one of these identities and, as a result, are forgotten by the law. For this reason, we have observed that the strong abolitionist and pro sex work lobbies did not contribute to transforming prostitutes’ human rights situation. These opposite discourses also occupy the entire discursive space at the national level in a way that impedes any real improvements to the lives and work conditions of prostitutes. In order to move beyond this impasse, one must find a completely inclusive category to identify people who sell sex in the legal realm. I believe the category that will protect and empower all prostitutes is the identity of the rights’ holder. In a perspective of interdependency of human rights, we are able to answer the specific needs of different groups of prostitutes depending on their self-assigned identity or their situation. If they identify as workers, the human rights approach could offer the liberty to sell sex, the security within the industry and the equality with other workers. If they do not identify as workers but rather they sell sex to survive and are members of vulnerable groups, the human rights angle could offer greater protections and help within the industry, measures to alleviate poverty and alternatives to prostitution for those who want to exit. The prostitution question requires transformations based on human rights. Therefore, in this chapter, I will explore the rights to security, liberty and equality in order to transfer the prostitution debate into the field of human rights and to better address prostitutes’ diverse identities and needs. First, I will look at the history of prostitution laws in Canada and the research that has been conducted on the topic in the last 40 years, such as the Fraser Report148 and several studies
148 Paul Fraser, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution (Ottawa: Minister of Supply and Services Canada, 1985) [Fraser]. 38 on the street solicitation provision. I will then introduce the Bedford149 case which is a good example of the prostitution dilemma at the national level. Second, I will examine the right to security in details starting with Justice Himel’s conception of security in the context of prostitution. The applicants, the respondents and the judge all bring interesting elements but I believe their conceptions of security are incomplete. I will reveal these limits through the examination of the dynamics of street and indoor prostitution, of the violence and sexism within the industry and of the criminalization of prostitution in general. I will then explore different ideas on the right to security presented in Gosselin150 and Morgentaler151 in order to fill the gaps in Bedford, to better ensure prostitutes’ safety and complexify the legal concept of security. Third, I will analyze the right to liberty in order to properly address the issue of prostitution in Canada. I will examine Wilson J.’s reasons on the right to liberty in relation to abortion issues in Morgentaler and draw parallels with prostitution. I will however reject a solely negative conception of the right to liberty in opposition to a positive right to equality and introduce a positive interpretation of the right to liberty which is absent from Canadian courts but is necessary to ensure prostitutes the full enjoyment of their human rights. Lastly, I will explore the right to equality in a substantive and generous manner, as I have done for the rights to security and liberty, in order to foster real changes and protections for prostitutes in a perspective of interdependency of human rights. I will summarize the origins and concept of substantive equality as defined by Canadian courts and then criticize the fact that, in this neoliberal climate, the constitutional equality standard is delivering diminishing returns. Through Gosselin, I will present another obstacle to the application of substantive equality, the language of choice, and send a call for a more complex understanding of choice. Finally, I will show the potential of substantive equality for the eradication of poverty and its positive implications for prostitution. If we are to move beyond the abolitionist/pro sex work impasse in order to have a chance to meaningfully transform the living and working conditions of prostitutes, feminists have to unite. I believe this focus on the interdependency of human rights is the solution.
149 Supra note 3. 150 Supra note 4. 151 Supra note 5. 39
2.1 From Research to Research to Inaction: Canada 1970-2011 It was not until the mid-1970s that perceived problems with prostitution law in Canada began to surface, driven by concerns that the Criminal Code152 statute prohibiting street prostitution was not enforceable. Canada’s vagrancy laws153, inherited from England and unchanged for over 80 years, were removed from the Criminal Code in 1972.154 The provisions aimed at street prostitutes were replaced by s. 195.1155, which prohibited “solicitation” for the purpose of prostitution. The Supreme Court held that the solicitation in question had to be “pressing or persistent” to make out the offence.156 This interpretation led to law enforcement officials complaining that the control of street prostitution had become very difficult.157 In March of 1983, the House of Commons Standing Committee on Justice and Legal Affairs agreed that existing Criminal Code provisions were not sufficient to halt solicitation for the purposes of prostitution. The Committee recommended that the law preventing any person from soliciting be defined to include the person soliciting the service of the prostitute, that public place be defined to include private places in public view (for example, a vehicle), that offering or accepting an offer to engage in prostitution in public be punishable on summary conviction, that a new offence of being involved with a prostitute under the age of 18 be created, and that a review of the amendments be conducted three years after their coming into force.158
2.1.1 The Fraser Report In June of 1983, the Minister of Justice rejected the House of Commons Standing Committee on Justice and Legal Affairs’ recommendations and formed the Special Committee on Pornography and Prostitution. This Special Committee commissioned a great deal of empirical research and ultimately published the Report of the Special Committee on
152 Criminal Code, RSC 1985, c C-46, as amended. 153 Criminal Code, RSC 1970 c C-34, s 175(1). Section 175(1)(c) deemed every woman a vagrant who: being a common prostitute or nightwalker is found in a public place and does not, when required, give a good account of herself. Section 175(1)(c) was a renumbering of 164(1)(c) and was colloquially referred to as Vag C. 154 Criminal Law Amendment Act, 1972, SC 1972, c 13, ss 12 and 15. Section 12 repealed 175(1) (a-c) of the 1970 Criminal Code, while section 15 added 195.1, which can be found at note 154 below. 155 Criminal Code, supra note 153, s 195.1: Every person who solicits any person in a public place for the purpose of prostitution is guilty of an offence punishable on summary conviction. 156 Hutt v The Queen, [1978] 2 SCR 476, [1978] 2 WWR 247 at 482. 157 Bedford, supra note at 3 para 136. 158 Ibid at para 137. 40
Pornography and Prostitution (Fraser Report) 159 in April 1985. One of its conclusions was that policies addressing prostitution should be guided by the principles of equality, individual adult responsibility, liberty, human dignity, and an appreciation of human sexuality. In light of these principles, the Fraser Report recommended that the adult prostitute be given leeway to conduct his or her business in privacy and dignity, by moving indoors in small numbers in order to better ensure safety. Further, it recommended that adults engaging in prostitution could and should be counted on to be responsible for themselves, and therefore should be entitled to give their earnings to whomever they wish provided no coercion or threats were present.160 The Fraser Report recommendations also included: a. Removing the prostitution-related activities of both street prostitutes and customers from the Criminal Code except where they contravene existing Criminal Code provisions by creating a definable nuisance; b. Rewriting the procuring and living on the avails sections of the Criminal Code that deal with exploitive behaviours (pimping) to prohibit instead behaviour which involves force or threats of force; c. Rewriting the bawdy-house sections to enable small numbers of prostitutes to work from their homes and to permit provinces (and municipalities) to regulate small scale prostitution establishments through zoning, licensing, and health and safety provisions.161 The Fraser Report ultimately concluded that the law on prostitution had failed to achieve its underlying objective of reducing prostitution. Instead, it operated to victimize and dehumanize prostitutes.162 One can see in this conclusion the potential for a Charter challenge based on the violation of prostitutes’ equality rights, in addition to their right to security. The Conservative government that received the Report in 1985 rejected the extensive law changes the Special Committee recommended, opting instead to rewrite the street prostitution offence.163 The murder of more than 200 street prostitutes in the last twenty-five years has prompted renewed calls for law reform.164
159 Fraser, supra note 148. 160 Bedford, supra note 3 at paras 138-40. 161 Ibid at para 147. 162 Fraser, supra note 148 at 533. 163 An Act to amend the Criminal Code (prostitution), SC 1985, c 50, s 1, RSC 1985, c C-46, s 213. The text of section 213 of the Criminal Code will be found at 43, below. 164 John Lowman, “Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution” (2011) 2 Beijing Law Review 33 at 34. 41
2.1.2 Studies and Reports on the Street Prostitution/Solicitation Provision The new street prostitution provision (section 213 of the Criminal Code) has been the subject of studies such as the Calgary/Winnipeg Study on the Victimization of Prostitutes published in 1994 and the Federal, Provincial and Territorial Deputy Justice Ministers’ Working Group on Prostitution which published a report in 1998165. They basically concluded that section 213 was ineffective and negatively impacted prostitutes. The Calgary/Winnipeg Study even stated that: The role of s. 213 is remote. This section, along with all the other laws designed to suppress prostitution, simply make the buying and selling of sex a comparatively underground activity. The secrecy of the trade not only shields prostitution from public view but provides a cover for violence against prostitutes which would be more likely to be detected and deterred if the activities operated completely in the open.166 Furthermore, in May 2003, the House of Commons Standing Committee on Justice and Human Rights established a Subcommittee on Solicitation Laws. The mandate of the Subcommittee was to review the solicitation laws in order to improve the safety of street prostitutes and communities overall, and to recommend changes that will reduce the exploitation of and violence against people who sell sex. In December 2006, the Subcommittee’s Report167 was published and it noted that the communicating provision “has not adequately reduced the incidence of street prostitution or even the social nuisance associated with its practice.”168 The vulnerability of persons engaging in street prostitution is also related to the fact that they frequently change locations. As a result of an arrest, fear of arrest, or a court order, street prostitutes are often forced to move to another area, effectively separating them from friends, co- workers, regular customers and familiar places. A number of witnesses indicated that this instability jeopardizes prostitutes’ health, safety and well-being.169 The Subcommittee’s Report suggested that most prostitutes do not report incidents of violence against them out of fear that
165 Federal, Provincial and Territorial Working Group on Prostitution, Report and Recommendations in respect of Legislation, Policy and Practices Concerning Prostitution-Related Activities, online: Walnet.org
2.1.3 Bedford: The Charter Challenge to Three Prostitution-Related Provisions In 2007 the Standing Committee on the Status of Women recommended that Canada adopt the Swedish model. As the impasse continues, women in the street sex trade continue to be murdered. Faced with this deadly inertia, two groups of sex workers have challenged several Criminal Code sections related to prostitution, arguing that they violate several of their Constitutional rights, including their right to life, liberty and security of the person.173 One challenge was launched by two former sex workers who wish to return to the trade, Terri-Jean Bedford and Valerie Scott, and one current sex worker, Amy Lebovitch. Justice Himel of the Ontario Superior Court of Justice ruled on September 28th, 2010 in Bedford that the three challenged provisions dealing with adult prostitution, sections 210, 212(1)(j), and 213(1)(c) of the Criminal Code174, were unconstitutional.175 The impugned provisions are as follows:
170 Ibid at 90. 171 Ibid at 67-68. 172 Ibid at 89-91. 173 Lowman, supra note 164 at 33. 174 Criminal Code, supra note 152, ss 210, 212(1)(j), and 213(1)(c). 175 Bedford, supra note 3 at paras 506-07. 43
The “bawdy-house” provisions 210. (1) Every one who keeps a common bawdy-house176 is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (2) Every one who (a) is an inmate of a common bawdy-house, (b) is found, without lawful excuse, in a common bawdy-house, or (c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house, is guilty of an offence punishable on summary conviction. (3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section. (4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence.
The “living on the avails” provision 212. (1) Every one who ... (j) lives wholly or in part on the avails of prostitution of another person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.177
The “communicating” provision 213. (1) Every person who in a public place or in any place open to public view178 ... (c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in
176 Himel J. notes that “common bawdy-house” is defined at section 197(1) of the Criminal Code as “a place that is (a) kept or occupied, or (b) resorted to by one or more persons for the purpose of prostitution or the practice of acts of indecency. Ibid at 6. 177 Himel J. also notes that section 212(3) of the Criminal Code provides that “[e]vidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j)...” She adds that the Supreme Court, in R v Downey, [1992] 2 SCR 10, 90 DLR (4th) 449, held that this provision does not violate the presumption of innocence set forth in section 11(d) of the Charter. Ibid at 7. 178 Himel J. further notes that “public place” is defined in section 213(2) of the Criminal Code: “In this section, ‘public place’ includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.” Ibid. 44
prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction. Justice Himel reminds us in Bedford that it is not the role of the court, but the role of Parliament, to decide whether or not there is a constitutional right to sell sex or to decide which legal model regarding prostitution should be implemented in Canada.179 Nonetheless, this issue might not have been relegated to the court if Parliament had taken into account the numerous studies and reports it had commissioned and had, for example, put in place the recommendations from the Fraser Report and the Subcommittee’s Report, rather than followed ideology. As a result, the tension between the abolitionist and pro sex work positions that we explored in chapter 1 has now been transferred to the court. In the next section, I will analyze the conceptions of the right to security of prostitutes presented in Bedford. I will also show the limits of these conceptions, present other ideas on security through cases such as Morgentaler and Gosselin, and offer some recommendations on how to complexify the legal concept of security and thus better ensure prostitutes’ safety.
2.2 The Right to Security 2.2.1 Bedford: Working Indoors to Ensure Security As we have seen above, Terri Jean Bedford, Valerie Scott, and Amy Lebovitch challenged the constitutionality of three prostitution-related provisions: the bawdy-house, the living on the avails of prostitution and the communicating laws (respectively sections 210, 212(1)(j), and 213(1)(c) of the Criminal Code). They argued that the three provisions violate their constitutional right to liberty and security guaranteed at section 7 of the Canadian Charter of Rights and Freedom (Charter) and, regarding the communicating law, their right to freedom of expression/communication protected at section 2(b) of the Charter.180 Justice Himel ruled in their favour since she found that the provisions endangered the lives of prostitutes in a way that could not be justified in a free and democratic society.181
179 Ibid at para 25. 180 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, ss 7 and 2b). 181 Bedford, supra note 3 at paras 506-07. 45
2.2.2.1 Justice Himel’s Reasons Justice Himel found that, with respect to the bawdy-house provisions, the evidence suggests that working in-call is the safest way to sell sex; yet, prostitutes who attempt to increase their level of safety by working in-call face criminal sanction. With respect to the living on the avails provision, prostitution, including legal out-call work, may be made less dangerous if a prostitute is allowed to hire an assistant or a bodyguard; however, such business relationships are illegal due to the living on the avails of prostitution provision. Finally, the communicating provision prohibits street prostitutes, who are largely the most vulnerable prostitutes and face an alarming amount of violence, from screening clients at an early and crucial stage of a potential transaction, thereby putting them at an increased risk of violence.182 These three provisions prevent prostitutes from taking precautions, some extremely rudimentary, that can decrease the risk of violence towards them. Prostitutes are faced with deciding between their liberty and their security of the person. Thus, while it is ultimately clients (and others) who inflict violence upon prostitutes, the law plays a sufficient contributory role in preventing them from taking steps that could reduce the risk of such violence.183 In fact, the impugned provisions do not need to directly cause the deprivation. There only needs to be a sufficient causal connection, which was found, between the state action and the deprivation ultimately effected as decided by the Supreme Court in Suresh v. Canada184, Blencoe185, and Canada v. Khadr186. This being said, Justice Himel must determine if these deprivations of liberty and security of the person are in accordance with the principles of fundamental justice and if the provision can be saved by section 1 of the Charter.
2.2.1.2 The Principles of Fundamental Justice Section 7 is defined in the Charter as follows: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” In the case of a violation of the right to life, liberty or security, Canadian courts must therefore determine whether this deprivation is in accordance with the principles of fundamental justice or not. This is the case for the Bedford decision.
182 Ibid at para 361. 183 Ibid at para 362. 184 Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3. 185 Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307. 186 Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44. 46
First of all, Himel J. asked if the impugned provisions arbitrarily deprive the applicants of liberty and security of the person. It is a principle of fundamental justice that laws must not be arbitrary. A law is arbitrary if it has no theoretical connection and/or connection on the facts with its objectives. Finding that, on a theoretical level, there exist at least some connection between all of the impugned provisions and their respective objectives, Himel J. had to answer the question whether the impugned provisions lack a real connection on the facts to their objectives.187 The bawdy-house provisions are generally aimed at combating neighbourhood disorder and risks to public health and safety. Based on the evidence, Justice Himel concluded that there was at least some real connection on the facts to the objective and that the provisions are not arbitrary. The legislative objective of the living on the avails provision is to prevent the exploitation of prostitutes as well as the profiting from prostitution by pimps. Evidence was presented that the effect of this provision is that prostitutes are not able to legally enter into certain business relationships that can increase their safety which left them facing difficult choices including working alone or working with a form of illegal protection with people willing to risk criminal charges or conviction; people who the provision is supposed to protect them from. For these reasons, Himel J. found that the living on the avails provision is inconsistent with its objective and thus arbitrary.188 The state objective of the communicating provision is to eradicate the various forms of social nuisance arising from the public display of the sale of sex.189 Although Himel J. found the law to be only minimally impacting the state’s interest since it is largely ineffective, she cannot find no relation between the provision and its objective; it is thus not arbitrary.190 Justice Himel added that even though the bawdy-house provisions are not arbitrary, she find that their interplay with the other impugned provisions renders them so. She wrote that: […] the safest way to conduct prostitution is generally in-call. The bawdy- house provisions make this type of prostitution illegal. Prostitutes can legally work out-call, which is not as safe, particularly as prostitutes are precluded by virtue of the living on the avails provision from forming certain “safety- enhancing” business relationships (such as hiring a driver or security guard). The other option is for prostitutes to work on the street, which would put them at risk of violating the communicating provision and further contributing to a
187 Bedford, supra note 3 at paras 369-77. 188 Ibid at paras 378-79. 189 Reference re ss 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 SCR 1123 at 15, [1990] 4 WWR 481 [Prostitution Reference]. 190 Bedford, supra note 3 at paras 383-84 [emphasis in original]. 47
form of public nuisance. Additionally, putting prostitutes at greater risk of violence cannot be said to be consistent with the goal of protecting public health or safety. Thus, when seen in conjunction with the other impugned provisions, the bawdy-house provisions are arbitrary in the sense that they may actually exacerbate the nuisance Parliament intends to eradicate.191 A similar argument can be made when looking at the communicating provision in conjunction with the other impugned provisions. Himel J. writes: Moving prostitutes “off the streets and out of public view” in order to combat social nuisance may serve to exacerbate the harm that the bawdy-house provisions target if prostitutes are forced to move indoors. Although prostitutes could conduct out-call work legally, it would be at a risk to their safety, particularly as they are precluded from hiring security guards or drivers. Such an outcome cannot be said to be consistent with Parliament’s objectives.192 She thus found that the impugned provisions acting in concert are arbitrary in that taken together they are inconsistent with the objective and there is no rational connection between the provisions and their objectives. Second, Justice Himel asked if the impugned provisions were overbroad. It is also a principle of fundamental justice that the legislation not be overbroad.193 In Heywood194, Cory J., for the majority of the Supreme Court, wrote that to determine if a provision is overbroad, a court must ask the question: are the means chosen by the state in relation to its purpose necessary to achieve the State objective?195 Himel J. observes that to convict a person of a bawdy-house offence, none of the harms the provision is aimed at need to be shown, such as neighbourhood disorder, or threats to public health or safety. The evidence from both parties demonstrates that there are few community complaints about indoor prostitution establishments. Therefore, she concludes that, because they assign criminal liability to those direct participants of bawdy-house prostitution who do not contribute to the harms Parliament seeks to prevent, the bawdy-house provisions are overly broad as they restrict liberty and security of the person more than is necessary to accomplish their goal.196 Since the living on the avails provision is aimed at stopping the abusive and exploitative aspect of pimps’ activities, then it is overbroad as a number of non-exploitative arrangements are caught by the provision, thus restricting the liberty of such
191 Ibid at para 385. 192 Ibid at para 387. 193 Ibid at para 389. 194 R v Heywood, [1994] 3 SCR 761, 120 DLR (4th) 348. 195 Ibid at 38. 196 Bedford, supra note 3 at para 401. 48 persons for no reason.197 Regarding the communicating provision, Justice Himel found that it sufficiently contributes to the deprivation of the liberty and security of the person of prostitutes. Not only does the provision impede communication that would allow prostitutes to screen potential clients for a propensity for violence but it is not necessary to curtail the harmful effects associated with visible solicitation for the purposes of prostitution.198 Third, Himel J. asked if the impugned provisions were grossly disproportionate. To determine this, she must ask if the provisions pursue legitimate state interests and, if they do, if the effects of the laws are so extreme that they are per se disproportionate to the state interest. Since she ruled that all the provisions’ objectives reflect a legitimate state purpose199, she moved on to the next question and identified the consequences of the impugned provisions on the claimants’ section 7 rights and ways violence can be reduced: 1. Prostitutes, particularly those who work on the street, are at a high risk of being the victims of physical violence. 2. The risk that a prostitute will experience violence can be reduced in the following ways: a. Working indoors is generally safer than working on the streets; b. Working in close proximity to others, including paid security staff, can increase safety; c. Taking the time to screen clients for intoxication or propensity to violence can increase safety; d. Having a regular clientele can increase safety; e. When a prostitute’s client is aware that the sexual acts will occur in a location that is pre-determined, known to others, or monitored in some way, safety can be increased; f. The use of drivers, receptionists and bodyguards can increase safety; and g. Indoor safeguards including closed-circuit television monitoring, call buttons, audio room monitoring; financial negotiations done in advance can increase safety. 3. The bawdy-house provisions can place prostitutes in danger by preventing them from working in-call in a regular indoor location and gaining the safety benefits of proximity to others, security staff, closed-circuit television and other monitoring.
197 Ibid at para 402. 198 Ibid at para 409. Harmful effects, as outlined by Dickson C.J., include “street congestion and noise, oral harassment of non-participants and general detrimental effects on passers-by or bystanders, especially children”. Prostitution Reference, supra note 189 at 15-16. 199 Bedford, supra note 3 at para 418. 49
4. The living on the avails of prostitution provision can make prostitutes more susceptible to violence by preventing them from legally hiring bodyguards or drivers while working. Without these supports, prostitutes may proceed to unknown locations and be left alone with clients who have the benefit of complete anonymity with no one nearby to hear and interrupt a violent act, and no one but the prostitute able to identify the aggressor. 5. The communicating provision can increase the vulnerability of street prostitutes by forcing them to forego screening customers at an early and crucial stage of the transaction.200 I would add that the communicating provision forces prostitutes to work alone in isolated areas and to half negotiate their transactions, and it prevents a proper evaluation of the situation and the application of other basic safety measures besides screening clients (tell a colleague where they are going, writing down the customer’s license plate number, etc.). According to Himel J., the effect of the impugned provisions is to force prostitutes to choose between their liberty interest and their own personal security since they place prostitutes at greater risk of experiencing violence. Thus, these risks represent a severe deprivation of the applicants’ right to security of the person.201 Furthermore, in looking at each provision, she found that the effects of the laws are grossly disproportionate to their legislative purposes.202 Finally, Justice Himel found it not possible to say that the provisions are proportionate or minimally impair the applicants’ rights to liberty and security of the person; therefore none of the impugned provisions are saved by section 1 of the Charter.203 In summary, Himel J. has concluded that the safest way to conduct prostitution is generally in-call but it is illegal. Prostitutes can legally work out-call, which is not as safe, particularly because they cannot hire security. The last option is to work on the street, which would put prostitutes at risk of experiencing violence or of violating the communicating provision just by applying basic safety measures. This reasoning seems to suggest that if prostitutes could work indoors, all would be well. It is of course necessary to allow indoor prostitution but it is not sufficient. In the next section, I will be presenting the limitations to the conceptualization of security in the Bedford decision by examining the dynamics of street prostitution, brothel restrictions and the case of the most vulnerable prostitutes.
200 Ibid at para 421. 201 Ibid at para 422. 202 Ibid at para 426. 203 Ibid at para 441. 50
2.2.2 The Limits of the Concept of Security in Bedford The Attorney General of Canada, the respondent in the Bedford case, stated that the risks and harms flowing from prostitution are inherent to the nature of the activity itself; thus, the risks and harms exist regardless of the many ways in which prostitution is practised, whether “street” or “off-street,” and regardless of the legal regime in place.204 In this case, they argue that the only relevant option is maintaining the current legislation which criminalizes the worst aspects of prostitution.205 It is surprising that the abolitionist expert witnesses supported the communicating provision since it targets prostitutes as well as clients – even though prostitutes are arrested under that provision a lot more often than clients206 – and since abolitionists are in favor of decriminalizing the status of people who sell sex. The respondent’s position on prostitution only leads to one possible security strategy: exiting or never engaging in prostitution. This conception of security is too large in the sense that it defines every instances of prostitution as violent or at least risky and allows only one option in a very paternalistic way. It does not encompass the full spectrum of realities in prostitution, which include those who consider sex as work and want to reduce the risks possible in all life and work experiences, and those who have few or no options apart from prostitution to ensure their survival. Himel J. mentioned important and relevant recommendations to improve the safety of prostitutes. However, the definition of security proposed by Himel J. could be enriched. First of all, she claims that working indoors, specifically in-call, is the safest way to conduct prostitution. It is, compared to working the streets and doing out-calls without proper security measures. Yet, working indoors is not always possible or desirable. One of the expert witnesses for the respondents, Dr. Alexis Kennedy, asserts that the work conditions for street workers will not change without the bawdy-house provision.207 The growing recognition that indoor work (if well managed) is safer than street work often leads to calls for legalization of indoor prostitution with an assumption that women on the street will be directed towards working indoors. This assumption misunderstands the dynamics of street prostitution including the advantages it has for some workers (e.g. the absence of time and routine restrictions) and the attraction it has for some customers. Legalizing indoor establishments as an alternative to the dangers of street prostitution
204 Ibid at para 17. 205 Ibid at para 14. 206 Ibid at para 152. 207 Ibid at paras 349-50. 51 also ignores the current organization of the off street sector which generally discourages the employment of drug dependent women, migrants with irregular status and women with mental illnesses.208 This might be the reason why, for example, despite the option to move indoors up to ten per cent of prostitution continues to occur on the street in the Netherlands209 and around 11% in New Zealand210. Even if this gap around security for street prostitutes exists in Bedford, several ideas are explored on how to manage street prostitution in the judgment. Some Dutch municipalities have created zones of tolerance, “tippelzones”, where street prostitution is permitted. Nurses, doctors and social workers inhabit tippelzones, providing needle exchanges, drop-in shower facilities, and advice to women who want to stop taking drugs or receive mental health treatment. Through ease of access to social services, many addicted prostitutes are connected with social welfare benefits, and this is at times enough to help them leave the sex industry. For those not yet ready to quit prostitution, the police tolerate a few well-behaved drug dealers, whose presence prevents the prostitutes from working outside the tippelzone. Furthermore, less than a kilometre from the Utrecht tippelzone, Dutch authorities built a set of 14 parking stalls, divided by concrete barriers, so that prostitutes and their customers would not conduct business in residential areas; the proximity to other prostitutes at the stalls also contributes to safety.211 There are certain guidelines one must however keep in mind when designating zones of tolerance for street prostitution. Marieke Van Doorninck and Rosie Campbell, who studied legal street sex work zones in the Netherlands, learned that the first zones in which street sex work was legalized were situated in existing areas and encountered less problems than the zones specifically built for the purpose of streetwalking. One of the reasons is that the first zones were integrated into society whereas the other zones were placed outside “normal” society and usually situated far away from city centers, beyond desolated areas. Overregulation – such as licensing, limited hours of work, ID verification, fines – can also be a problem for several street sex workers. Consequently, they have to work illegally outside the zones.212
208 Teela Sanders & Rosie Campbell, “Designing out vulnerability, building in respect: violence, safety and sex work policy” (2007) 58:1 The British Journal of Sociology 1 at 14. 209 Bedford, supra note 3 at para 189. 210 Ibid at para 196. 211 Ibid at paras 189-90. 212 Marieke Van Doorninck and Rosie Campbell, “‘Zoning’ street sex work: the way forward?” in Rosie Campbell & Maggie O’Neill, eds, Sex Work Now (Portland: Willan Publishing, 2006) 62 at 70. 52
Second of all, bawdy-houses, if legal but regulated too strictly, also become unacceptable work environments and prostitutes then resort to illegal work. For example, Brents and Hausbeck studied violence, perceptions of safety and risk, and practices to prevent it in legalized brothels of Nevada. The brothel female prostitutes they interviewed said they felt safe from violence to justify satisfaction with brothels as opposed to illegal work.213 However, if their work was legal in all circumstances, their answer might have been different. The authors argue that most laws regulating prostitution seek not to eliminate but to control and hide prostitutes, and their “socially corrosive behaviour”, from public life, and usually involve mandatory STI testing for workers, but never for clients, reinforcing the stereotype of the STI spreading whores. Nevada’s statutes are no exception. They prohibit pandering, forced prostitution, living off the earnings of prostitution, and impose zoning restrictions.214 The authors found that the most employed mechanisms to provide safety include guidelines for the negotiation process, call buttons and audio room monitoring, control of customer behaviour, good relations with police, limiting out-of-brothel services, limiting the movement of prostitutes, adhering to health regulations, and engaging in preventative practices. Even though those practices’ purposes aim to protect workers and customers, the authors assert that the most central mechanisms seek to protect profitability for owners. For example, listening in through the intercom is one way owners can control women’s negotiations with customers. Some workers have complained that owners are not listening the rest of the time, or that panic buttons are inconveniently located, so they do not feel safe.215 Another problematic aspect of Nevada brothels is the fact that the majority do not allow women to leave the premises while they are on contract to work, even if they are not on shift.216 This was also observed by Sieberg, and as a result, prostitutes will sometimes choose to work illegally in the streets in order to have more control over their lives and work conditions.217
213 Barbara G. Brents & Kathryn Hausbeck, “Violence and Legalized Brothel Prostitution in Nevada. Examining Safety, Risk, and Prostitution Policy” (2005) 20:3 Journal of Interpersonal Violence 270 at 270-71. After 8 years of field research, they have concluded that the legalization of prostitution brings a level of public scrutiny, official regulation, and bureaucratization to brothels that decrease the risk of three types of systematic violence: interpersonal violence, violence against community order, and STIs as violence. To be clear, they mean that legalizing is better than criminalizing prostitution; they do not talk though about total decriminalization. 214 Ibid at 273 and 275-76. 215 Ibid at 279-81. 216 Ibid at 284. 217 Katri K. Sieberg, Criminal Dilemmas. Understanding and Preventing Crime (Heidelberg: Springer, 2001) at 70. As we have seen, it is essential to keep in mind that the regulation of indoor and outdoor prostitution must not be too 53
Third, all criminalization of prostitution-related aspects is hurting prostitutes, even when it is accompanied by progressive policies. Bruckert and Parent observe that the layering of regulation of the in-call sex industry through municipal by-laws over criminalization in Canada do not protect in practice against criminalization, impose additional levels of control and offer few benefits; even if in theory they could create a safer and controlled space for workers.218 For example, Windsor has a unique escort licensing policy which, according to Lewis and Maticka- Tyndale, had the potential to be a healthy public policy but was not in practice. The policy allows prostitutes to choose whether to work for an agency or be independent of one and to arrange their work from their homes while they await calls from clients. They thus remain integrated in their local communities rather than segregated in red-light districts, and residency restrictions are not different from those for other municipally licensed occupations, such as taxi drivers. However, because of the way police use the information made available through licensing and because of municipalities’ ambiguous position regarding federal prostitution- related criminal statutes, the authors argue that the policy lost its progressive quality.219 Bouclin contends that criminal law should be a policy instrument of last resort since it is “a precarious and deeply flawed tool for furthering women’s equality and security and that the criminal justice system is at worst abusive and at best inattentive to the needs of women and victims of violence.”220 Even the sole criminalization of clients, intended to protect prostitutes according to the abolitionists, has had the paradoxical effect of generating higher level of risk and danger for street-based prostitutes.221 The simple demonization of clients and the portrayal of the purchase of sexual services as wrong and shameful behaviour have been shown to increase
restrictive (in terms of zoning and licensing) or invasive (in terms of health and safety measures) and should be designed with the input of prostitutes in order to meet their needs if it has any chance of being efficient and respectful. For more literature supporting this affirmation, see Jane Scoular, “What’s Law Got To Do With it? How and Why Law Matters in the Regulation of Sex Work” (2010) 37:1 JL & Soc’y 12 at 20-21 and 34; Phil Hubbard & Teela Sanders, “Making Space for Sex Work: Female Street Prostitution and the Production of Urban Space” (2003) 27:1 International Journal of Urban and Regional Research 75 at 78-80; Steven A. Kohm & John Selwood, Sex Work and City Planning: Winnipeg’s Red Light District Committee and the Regulation of Prostitution (Winnipeg: Institute of Urban Studies, 2004) at 7-8. 218 Chris Bruckert & Colette Parent, “The In-Call Sex Industry: Classed and Gendered Labour on the Margins” in Gillian Balfour and Elizabeth Comack, Criminalizing Women: Gender and (In)Justice in Neo-Liberal Times (Halifax: Fernwood Publishing, 2006) 95 at 100. 219 Jacqueline Lewis & Eleanor Maticka-Tyndale, “Licensing Sex Work: Public Policy and Women’s Lives” (2000) 26:4 Can Pub Pol’y 437 at 446-47. 220 Bouclin, supra note 15 at 21. 221 Scoular, supra note 217 at 19-20. 54 negative attitudes and violence against all prostitutes.222 Criminal and non-criminal strategies to reduce demand – such as arrests, humiliation, and the publication of clients’ names in the newspapers as it has been done in Chicago – increase the clients’ costs by adding social stigma to financial costs. As a result, the customers will try to find ways around that and prostitution will be pushed further underground as prostitutes will choose unsafe and darker areas to meet customers.223 The burden of this criminalization will again be the prostitutes to bear. Lastly, there is something to be said about systemic violence against women and prostitutes in our societies. Justice Himel wrote that violence in prostitution can be reduced but not eliminated since “prostitutes are one of the most marginalized and vulnerable group in Canada, especially young, racialized, poor and Native women who work on the street”224. Furthermore, even though violence against prostitutes is often facilitated by criminalization or too rigid legalization, violent acts are mainly perpetrated by pimps, clients and police officers. Thus, according to Heli Askola, there is a real risk that prostitution law reform alone be seen as a complete solution to violence in prostitution. Changing the existing reality of prostitutes as social outcasts and customers as ‘natural’ sex-buyers requires long-standing education-based commitment to contesting the current cultural meanings of gender roles and of prostitution.225 Sherene Razack adds that we need to reform the attitudes and relations that make it acceptable to abuse and murder prostitutes, relations such as “good girls and bad girls but also white people and racialized peoples, spaces of racial and sexual disorder and spaces of respectability, First World and Third World, [etc.]”.226 If the ultimate aim is to reduce violence against prostitutes, policy thus needs to address perceptions of prostitution and attitudes associated with the people who sell sex.227 I was thus interested by some of the initiatives taken by legislators around the world who have chosen to introduce municipally-based licensing policies that permits cities to address social harms specific to their situation. For example, Justice Himel mentions an Australian
222 Sanders & Campbell, supra note 208 at 16. 223 Sieberg, supra note 217 at 69-70. Sanders and Campbell add that the demonization of clients has negative impacts on prostitutes, supra note 208 at 16. 224 Bedford, supra note 3 at para 300. 225 Heli Askola, Legal responses to trafficking in women for sexual exploitation in the European Union (Oxford: Hart Publishing, 2007) at 40. 226 Sherene Razack, “Race, Space, and Prostitution: The Making of the Bourgeois Subject” (1998) 10 CJWL 338 at 375. 227 Sanders & Campbell, supra note 208 at 15. 55 provision which specifies that “crimes committed against prostitutes may result in higher penalties as a result of the circumstances of the crime and the vulnerability of the victim.”228 A lot more could be done however to address issues experienced by the most vulnerable prostitutes. In conclusion, all parties involved in the Bedford decision offer a problematic or incomplete vision of prostitutes’ security. The Attorney General of Canada and the abolitionist expert witnesses do not believe it is possible to achieve security within the sex industry, but this position is not useful or helpful for prostitutes. Justice Himel, siding more with the pro sex work stance, made important observations on the safety of prostitutes. They are however mostly applying to labour conditions for prostitutes who can and want to work indoors. The most vulnerable of prostitutes thus fall into the cracks once more. In the next sections, I will explore Canadian court cases that offer other conceptions of security that could fill the gaps of the Bedford decision and better protect prostitutes.
2.2.3 Justice Arbour’s Dissident Opinion in Gosselin: The Lack of Government Intervention as Violation of the Right to Security Arbour J., together with L’Heureux-Dubé J., offered dissenting opinions with the majority about the application of section 7 of the Charter in the Gosselin229 decision. Arbour J. writes that a “minimum level of welfare is so closely connected to issues relating to one’s health (or security of the person), and potentially even to one’s survival (or life interest), that it appears inevitable that a positive right to life, liberty and security of the person must provide for it.”230 She then explains that what is at stake in Gosselin is not exclusion from the particular statutory regime but, more basically, the claimants’ fundamental rights to security of the person and life itself. She finds that there was ample evidence that the “lack of government intervention substantially impeded the enjoyment of their section 7 rights.” Government intervention was necessary to render their section 7 rights meaningful. Arbour J. thus claims that the state does have an obligation to address basic needs relating to the personal security and survival of indigent members of society.231 To support this claim, Arbour J. notes that in G (J)232, the Court held that section 7 provides a positive right to state-funded counsel in the context of a child
228 Sex Industry Offences Act 2005 (Tas), s 7. 229 Supra note 4. 230 Ibid at para 358. 231 Ibid at para 370. 232 New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3 SCR 46, 177 DLR (4th) 124. 56 custody judicial hearing. Arbour J. points out Lamer C.J.’s opinion on the matter: “The omission of a positive right to state funded counsel in s. 10… does not preclude an interpretation of section 7 that imposes a positive constitutional obligation on governments to provide counsel in those cases when it is necessary to ensure a fair hearing.”233 She adds that “[i]t is in the very nature of such obligations that they can be violated by mere inaction, or failure to perform the actions that one is duty-bound to perform.”234 Justice Arbour then turns to Dunmore235 to solidify her claim and points out that the Court held that “exclusion from a protective regime may in some contexts amount to an affirmative interference with the effective exercise of a protected freedom.”236 She agrees with Dunmore which confirms that state inaction – the mere failure of the state to exercise its legislative choice in connection with the protected interests of some societal group, while exercising it in connection with those of others – may at times constitute “affirmative interference” with one’s Charter rights. Thus, Arbour J. concludes that in certain contexts the state is under a positive duty to extend legislative protections where it fails to do so inclusively.237 Even though this is a dissenting opinion, the majority in Gosselin did agree that the door should be left open for a claim that governments have a positive obligation to sustain life, liberty or security of the person.238 Since Himel J. agreed that some of the most vulnerable groups of women sell sex as a means for survival and because they lack alternatives, this more generous interpretation of the right to security found in Arbour J.’s dissenting opinion in Gosselin could be applied to the Bedford case as the state does have an obligation to address basic needs relating to the personal security of indigent members of society. Himel J. could have suggested that a lack of government intervention would substantially impede the enjoyment of the prostitutes’ right to security since removing the impugned provisions to allow prostitutes to apply basic measures of safety in the context of their work is essential, however not sufficient for the most vulnerable groups. Accordingly, the government could give them a minimum level of welfare, or even a
233 Ibid at para 107. 234 Gosselin, supra note 4 at para 325. 235 Dunmore v Ontario (Attorney General), 2001 SCC 94, [2001] 3 SCR 1016. 236 Ibid at para 22. 237 Gosselin, supra note 4 at para 327. 238 Ibid at para 83. 57 guaranteed income239, provide harsher punishments for perpetrators of violence against prostitutes, and provide people who sell sex with programs to find complementary income and alternatives to prostitution, when they so desire. A positive right to security, in the context of prostitution and the Bedford case, could also mean mandatory education and sensitivity training for all levels of government, law enforcement and emergency services staff that interact with prostitutes and make decisions that affect prostitutes and the sex industry, a provision which specifies that prostitutes never lose their right to terminate a contract for sexual services at any time for any reason, and forums in which people who sell sex can give their input on policies and laws that will affect them. For example, regarding licensing, a study conducted in Canada concluded that prostitutes should be able to choose if they want to work with an agency or independently, and that the licenses should be fair and not disproportionately costly or restrictive. With respect to zoning, any relevant scheme should be guided by concerns for the safety, privacy and autonomy of people who sell sex, should permit two prostitutes to take in- calls at a single residential location, should not prohibit street prostitution entirely, and should not permit sex industry businesses to be located near schools or children’s playgrounds. Finally, very restrictive immigration laws can have the effect of driving migrant prostitutes underground, particularly those who are in the country illegally or on temporary visas, and will often prevent them from seeking the assistance of the police and other social services if they are victims of violence or exploitation.240 It is therefore important not to forget migrant (sex) workers in the drawing of progressive labour and social justice policies targeting prostitution, as they can be even more vulnerable to individual and state violence than street prostitutes.
239 The term “guaranteed income” refers to a specific although broad category of social reform. As a starting place for discussion, the idea of a guaranteed income is used to signal reform proposals that advocate some variant of an income benefit scheme in which the state provides a minimum level of basic income on a continuing basis to every adult, irrespective of personal circumstances or need, with no or very few conditions attached. For more details, see Margot Young & James P. Mulvale, Possibilities and Prospects: The Debate over Guaranteed Income. An Economic Security Project Report (Ottawa: Canadian Center for Policy Alternatives, 2009). 240 Mary Childs et al, Beyond Decriminalization: Sex Work, Human Rights and a New Framework for Law Reform, online: Pivot Legal Society
2.2.4 Morgentaler and the Right to Engage in Prostitution In the historic 1988 Morgentaler241 decision, the Supreme Court decriminalized abortion services in Canada because former section 251 of the Criminal Code242 violated the right to security of women. More precisely, the Court found that state interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person and that section 251 clearly interfered with a woman’s physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person.243 To be clear, the decision did not put in place a “right to access to abortion” in Canada, but rather found that the procedural requirements of section 251 were unfair. The “security of the person” within the meaning of section 7 of the Charter must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction. If an act of Parliament forces a pregnant woman whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain effective and timely medical treatment and, on the other hand, inadequate treatment or no treatment at all, her right to security of the person has been violated.244 While Parliament is justified, according to the Court, in requiring a reliable, independent and medically sound opinion as to the “life or health” of the pregnant woman in order to protect the state interest in the foetus, and while any such statutory mechanism will inevitably result in some delay, some of the procedural requirements of section 251 of the Criminal Code were found to be unfair because unnecessary in respect of Parliament’s objectives in establishing the administrative structure and in that they resulted in additional risks to the health of pregnant women.245 Wilson J. goes further in her opinion. She rules on what she believes to be the central issue of the Morgentaler case: the right of access to abortion. In order to do so, she examines the right to security and the right to liberty. She claims that if either the right to liberty or the right to security of the person or a combination of both confers on the pregnant woman the right to decide for herself (with the guidance of her physician) whether or not to have an abortion, then
241 Supra note 5. 242 Criminal Code, supra note 153, s 251. See Appendix I. 243 Morgentaler, supra note 5 at para 22. 244 Ibid at para 85. 245 Ibid at para 136. 59 we have to examine the legislative scheme not only from the point of view of fundamental justice in the procedural sense but in the substantive sense as well.246 Going back to the Bedford decision, and taking from Wilson J. reasoning in Morgentaler, one can pretend it could have been argued that it is an exercise in futility to review those prostitution-related provisions if there exists a right to engage in prostitution in order to protect the right to safety of prostitutes in the sex trade, and that could have been the central issue of the Bedford case. As we have seen above, criminalization of certain aspects of prostitution (no indoor prostitution, or no street prostitution, etc.) and even too rigid regulation (high levels of control in brothels, street prostitution only in certain far and isolated industrial areas, etc.) can impede prostitutes’ right to security. Furthermore, for prostitutes who have no other means to meet their basic needs (food, shelter, clothing, etc.) because of a lack of options, prostitution is the only possibility to legally earn an income. Consequently, the right to engage in prostitution becomes a matter of health and thus of security (and even life), and the right to engage in prostitution seems necessary in order to ensure the right to security (and liberty and equality, as we will see below) of prostitutes. In summary, Justice Himel found in Bedford that the three impugned provisions of the Criminal Code, the bawdy-house, the living on the avails and the communicating provisions deprived the prostitutes from their right to security and liberty and concluded that the safest way to conduct prostitution is generally in-call but it is illegal. Prostitutes can legally work out-call, which is not as safe, particularly because they cannot hire security. The last option is to work on the street, which is illegal and more dangerous. This reasoning seems to suggest that if prostitutes could work indoors, all would be well. It is of course necessary to allow indoor prostitution but it is not sufficient; this is where the Bedford case is lacking. Working indoors is not always possible or desirable for prostitutes because of the specific dynamics of street sex work and the current organization of the off street sector. As we have seen, a legal regime that would only allow indoor prostitution, would rigidly restrict and regulate street prostitution, would not address sexism, racism, classism and colonialism within the sex industry, and would use any form of criminalization to regulate prostitution, even targeting clients only, would most likely deprive prostitutes of their right to security. In this logic, I have borrowed from the dissenting opinion of Gosselin and the concurring opinion in Morgentaler in an attempt to fill the
246 Ibid at para 222. 60 gaps in the conception of the right to security in Bedford. According to Arbour J. in Gosselin, the state does have an obligation to address basic needs relating to the personal security and survival of indigent members of society. Borrowing from Justice Wilson’s reasoning in Morgentaler, I proposed that the right to engage in prostitution be considered since for many prostitutes, selling sex is a matter of survival and health and thus a matter of security. As a more generous interpretation of the right to security is necessary to truly ensure the security of prostitutes, a complete analysis of the right to liberty is also needed to properly address the issue of prostitution in Canada. Therefore, I will examine Wilson J.’s reasons on the right to liberty in relation to abortion in the next section and draw conclusions regarding prostitution. I will also introduce a positive interpretation of the right to liberty which is absent from the Canadian courts but is necessary to ensure prostitutes the full enjoyment of their human rights.
2.3 The Right to Liberty In Bedford, the applicants have argued that the impugned provisions violated their right to liberty. Justice Himel has ruled that the availability of imprisonment for all of the impugned provisions is sufficient to trigger section 7 scrutiny. And she then turned to the analysis of the right to security of the person.247 However, the right to liberty is not to only be interpreted as a protection against arbitrary arrest and detention.248 Therefore, in this section, I will examine the right to liberty as defined by Justice Wilson in Morgentaler and its implications for prostitution in Canada, I will criticize its narrowness and its opposition to the concept of equality using the theoretical work of Beth Jamieson, and I will introduce a positive conception of the right to liberty assembled by Sandra Fredman which will better support a positive interpretation of the right to security in order to ensure prostitutes’ full enjoyment of their human rights.
2.3.1 Morgentaler and the Negative Conception of the Right to Liberty Even though the Supreme Court’s majority in Morgentaler concluded that it was then sufficient to rule on the right to security, we can find in its own reasons some excerpts that seems to apply to the right to liberty. For example, the majority mentions that section 251 of the
247 Bedford, supra note 3 at para 281. 248 Morgentaler, supra note 5 at para 82. 61
Criminal Code takes a personal and private decision away from the woman and gives it to a committee which bases its decision on “criteria entirely unrelated to [the pregnant woman’s] own priorities and aspirations”.249 However, it is only in the concurring opinion of Justice Wilson that we can find a thorough analysis of the right to liberty. According to Wilson J., the right to “liberty” contained in section 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life.250 She continues by reminding us of her dissenting position in R. v. Jones251 stating that the right to liberty in section 7 of the Charter includes parents’ right to bring up their children in accordance with their conscientious beliefs. She states that: the framers of the Constitution in guaranteeing “liberty” as a fundamental value in a free and democratic society had in mind the freedom of the individual to develop and realize his potential to the full, to plan his own life to suit his own character, to make his own choices for good or ill, to be non-conformist, idiosyncratic and even eccentric – to be, in today’s parlance, “his own person” and accountable as such. John Stuart Mill described it as “pursuing our own good in our own way”. This, he believed, we should be free to do “so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it”. He added: Each is the proper guardian of his own health, whether bodily or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves than by compelling each to live as seems good to the rest.252 This excerpt is relevant to prostitution because by asserting that prostitution is violence against women, and that women never really choose to engage in prostitution (because of a lack of alternatives, poverty, a violent past or false consciousness), abolitionists do not believe prostitutes are their own persons and accountable as such. They are making a moral judgement about the way prostitutes should lead their lives, and are trying through law to impose what they think is a proper way to earn a living. This position is unacceptable in terms of the Charter because it prevents and denies prostitutes their agency, free will and autonomy. Since the evidence indicates that safety is better ensured through open business transactions, the fact that the respondents in Bedford want to maintain in-call and street prostitution impossible is fulfilling another objective than the one stated, which is avoiding public nuisance. It is fulfilling an objective of moral nature. The Fraser Report is supporting this claim by observing that:
249 Ibid at para 22. 250 Ibid at para 238. 251 R v Jones, [1986] 2 SCR 284, 31 DLR (4th) 569. 252 Ibid at para 76 [emphasis added]. 62
while we talk of prostitution being free of legal sanction, we in reality use the law indirectly and capriciously to condemn or harass it, providing no safe context for its operation except that which can be bought by the prostitute of means, or, as is more likely, the well-heeled sponsor or sponsors.253 Abolitionists also believe that prostitution reflects badly on all women because if a man can “buy” a prostitute like a sexual commodity, it means that he can treat all women as such. This is a wrong understanding of how prostitution works, or at least of how it should work. Buying the sexual services of a prostitute is a consensual business transaction where violence is unacceptable. If some men believe that because they are paying, they can do what they want, this most likely stems from a sexist vision of women as sexual objects, which probably affects all their relationships with women, and a distorted vision of prostitutes as disposable and valueless. Prostitution does not cause sexism; it permeates every aspects of society and prostitution is no exception. Prostitution as we know it may be a product of sexism and patriarchy (as well as racism, classism, capitalism and colonialism), but removing a symptom does not make the problem disappear. Our efforts should thus be focused on eliminating oppressive behaviors, by educating the population and empowering the most vulnerable individuals and groups, rather than on eliminating prostitution. This next excerpt of Wilson J.’s opinion in Morgentaler can also be applied to the issue of prostitution and inform the Bedford case: [I]t is probably impossible for a man to respond, even imaginatively, to such a dilemma not just because it is outside the realm of his personal experience (although this is, of course, the case) but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma.”254 As we have seen above, prostitutes have argued that their input on policies and laws related to prostitution is essential, not only because they have first-hand knowledge of it, but because they will be the most affected by these regulations, whereas abolitionists will not have to deal with the consequences of the policies they are pushing for. According to Bouclin, people who sell sex have the right to self-define and self-represent, and this requires the state to free the necessary “moral space” in order for each individual prostitute to determine what selling sex means to her or him. Also, allies must denounce any
253 Fraser, supra note 148 at 533 [emphasis added]. 254 Morgentaler, supra note 5 at para 240 [emphasis added]. 63 further exclusion of prostitutes and their organizations in policy-making, research, and popular debates around transactional sex. Longitudinal qualitative and quantitative empirical research has found that when prostitutes are not included in political discussion and policy development, decision are made that result in workers who occupy the most marginal positions within the industry – especially migrant workers – being rendered more vulnerable to exploitation.255 According to the UNAIDS Advisory Group on HIV and Sex Work, “[m]erely consulting sex workers is insufficient; rather, strong programming should be based on the stated needs of the sex workers themselves in the area of the intervention.” Furthermore, different regions will call for different needs therefore local prostitutes must be involved in the design of interventions to be implemented in their area.256 For example, Phoenix observes that a shift to an abolitionist agenda in several countries has fostered a demarcation between victimized women not voluntarily engaged in prostitution and those who are, evacuating the notion of necessity. Faced with the imperative to act, the state offers prostitutes two options: victims are compelled to seek help and the voluntarily engaged are given the choice to get help to leave the trade or face harsher punishments.257 The state justifies detaining women “for their own good” since it removes them from potentially dangerous situations in the sex trade and the street. This neo- liberal mode of governance blaming prostitutes for their own poverty and their attempts to survive it generates greater levels of control in prostitutes’ lives through diverse interventions such as the use of the police to compel prostitutes into treatment programmes (breach of which may result in a prison sentence of up to five years), conditional discharges and mandatory drug testing. According to Phoenix, under this new regulation system, it is not only the prostitutes’ activities that become the focus of intervention and sanction but the totality of their lives: patterns of drug use, the appropriateness of their housing, their personal relationships with men, their mental health, their educational and work status, etc.258 It is thus essential that the input of prostitutes, regarding their multiple realities, identities and needs, be taken into account in order to ensure laws and policies do not infringe their right to liberty.
255 Bouclin, supra note 15 at 21. 256 Advisory Group, supra note 22 at 13. 257 Jo Phoenix, “Governing Prostitution: New Formations, Old Agendas” (2007) 22:2 CJLS 73 at 89-90. 258 Ibid at 92. 64
Finally, Wilson J. adds that “liberty in a free and democratic society does not require the state to approve the decisions made by its citizens; it does, however, require the state to respect them.”259 She explains that: [t]he question then becomes whether the decision of a woman to terminate her pregnancy falls within this class of protected decisions. […] This decision is one that will have profound psychological, economic and social consequences for the pregnant woman. […] It is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society at large. It is not just a medical decision; it is a profound social and ethical one as well. Her response to it will be the response of the whole person.260 Interestingly, Wilson J. explains that a deprivation of the section 7 right which has the effect of infringing a right guaranteed elsewhere in the Charter cannot be in accordance with the principles of fundamental justice. In this case, the violation of the section 7 right also infringes freedom of conscience guaranteed in section 2(a) of the Charter. The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society the conscience of the individual must be paramount to that of the state. Section 2(a) makes it clear that this freedom belongs to each of us individually. “Freedom of conscience and religion” should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality. The state here is endorsing one conscientiously-held view at the expense of another.261 Furthermore, Wilson J. asserts that the “individuals are afforded the right to choose their own religion and their own philosophy of life, the right to choose with whom they will associate and how they will express themselves, the right to choose where they will live and what occupation they will pursue.”262 These are all examples of the basic theory underlying the Charter, namely that the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life. Therefore, even though “the criminal law is a very special form of governmental regulation, for it seeks to express our society’s collective disapprobation of certain acts and omissions”263, an aspect of the respect for human dignity on which the Charter is founded is the right to make fundamental personal decisions without interference from the state. This right is a critical
259 Morgentaler, supra note 5 at para 229. 260 Ibid at para 239 [emphasis added]. 261 Ibid at 12. 262 Ibid at para 227. 263 Ibid at para 199. 65 component of the right to liberty.264 Here the link with prostitution is obvious. There certainly exist very different moral visions of prostitution and the State is imposing one by criminalizing almost all aspects of prostitution except prostitution itself. As we have seen above, the Subcommittee’s Report states that the harmful aspects of prostitution, such as public disturbance, indecent exhibition and coercion, can be dealt with through other provisions of the Criminal Code.265 Therefore, according to the Fraser Report, the current laws, which impede all prostitution-related activities, victimize and dehumanize prostitutes by creating a different status for them and disrespecting their individual choice to engage in prostitution.266 The right to liberty may seem in contradiction with the comprehensive conception of the right to security I have developed in the preceding section but I believe it supports it. The absence of interference of the state is important regarding the personal decision to engage in prostitution (as a valid economic option preferred to other possible occupations). However, the interference of the state, through initiatives such as adequate protective and anti-poverty measures, to allow the full enjoyment of human rights and to expand the spectrum of choices for individuals is also necessary. I will explore this positive right to liberty, greatly needed but lacking from Canadian jurisprudence, in the next sections.
2.3.2 Moving Away from the “Liberty-Equality Dilemma” Beth Kiyoko Jamieson denounces the opposition of liberty and equality in feminist legal theory. The “liberty-equality dilemma”, as she coined it, defines the relationship between the two concepts as a zero-sum game: if more equality exists, then liberty must be reduced, and vice- versa. She suggests a new way of thinking about liberty – one that begins from the premise that liberty and equality are not necessarily antithetical and recognizes that a contingent and complicated conception of liberty is necessary for feminist legal theory and justice for women to be possible: “Women cannot be free without being equal and they cannot be equal if they are not free.”267 Most feminist scholars ask: What use are freedoms when women are second-class citizens? What good are rights that cannot be exercised because of sociopolitical inequality? These questions are important, says Jamieson, but liberty is sometimes demonized and seen as an
264 Ibid at para 228. 265 Hanger & Maloney, supra note 167 at 90. 266 Fraser, supra note 148 at 533. 267 Beth Kiyoko Jamieson, Real choices: feminism, freedom, and the limits of law (Pennsylvania: Penn State Press, 2003) at 18. 66 empty promise used to keep the power of women contained.268 Patricia Cain wrote: “The dominant political discourse interprets liberty to mean negative liberty. Part of the feminist attraction to equality stems from the possibility of interpreting equality to grant women more substantive rights than those that can be derived from negative liberty.”269 Jamieson asks “since when do feminists happily appropriate the definitions assigned by ‘the dominant political discourse’”? As a critical theory, feminism should require careful examination of the ways concepts are deployed to further or challenge the interests of patriarchy, she adds. Echoing Jamieson’s suggestion, Robin West proposes that “instead of trying to limit liberty by urging equality as a counterweight, we should undertake a reconstruction of the modern interpretation of ordered liberty presently dominating both doctrine and understanding so as to include the liberties women distinctively lack” such as “autonomy, self-possession, economic self- sufficiency, and self-governance.”270 A new understanding of liberty is required – one that will avoid caricatures of liberal-legalism, one that reflects sophisticated notions of equality, one that is grounded in and directed toward improving the conditions of women’s lives.271 Jamieson suggests that defining the limits of liberty in light of a principled commitment to avoid the subordination of persons can help to clarify the terms of the debate and show that liberty and equality should be considered partners in the search for justice. Therefore, the right to control one’s own body does not extend to the right to control another’s body, even if access was granted contractually. We must not sacrifice the substance of justice to the interest of contractual procedure, she writes.272 For example, on the issue of prostitution, this new liberty principle would ensure that the state be disallowed from enforcing a prostitution contract in which a customer was deprived of sex despite his promise of money – as it is the case in the New Zealand legislation273. In contrast, a prostitute who provided sexual services and was not compensated should be free to claim theft (or rape).274
268 Ibid at 19. 269 Patricia A. Cain, “Feminism and the Limits of Equality” (1990) 24 Ga L Rev 803 at 803. 270 Robin West, “Reconstructing Liberty” (1992) 59 Tenn L Rev 441 at 465 and 467. 271 Jamieson, supra note 267 at 33. 272 Ibid at 225. 273 Prostitution Reform Act 2003 (NZ) 2003/28, ss 17 and 18. Part 2 Commercial sexual services: Section 17: Refusal to provide commercial sexual services: (1) Despite anything in a contract for the provision of commercial sexual services, a person may, at any time, refuse to provide, or to continue to provide, a commercial sexual service to any other person; (2) The fact that a person has entered into a contract to provide commercial sexual services does not of itself constitute consent for the purposes of the criminal law if he or she does not consent, or withdraws his or her consent, to providing a commercial sexual service; (3) However, nothing in this 67
Finally, Jamieson reminds us that liberty is both a negative and a positive right and that a proper understanding of liberty requires both “limits on the state’s ability to interfere in the lives of its constituents and affirmative institutional change to encourage the development of human potential in the greatest diversity”, and that these goals are not necessarily in conflict.275 This idea is developed more thoroughly in the next section.
2.3.3 The Right to Liberty: From Non-Intervention to Enhancing Choice According to Sandra Fredman, the emphasis on liberty as absence from coercion has received renewed interest from modern neo-liberalism, which views the growth of the State as an ever-increasing threat to individual autonomy and posits the free market as the only way in which individuals can truly be free. However, from a human rights perspective, it is difficult to see why freedom should be seen only as an absence of deliberate State interference. If human rights are to be secured to all, it does not make sense to ignore other constraints on the ability of individuals to exercise their rights. Such constraints can arise as much from poverty, poor health, lack of education, few economic opportunities and neglect of public facilities as from tyranny and intolerance.276 This approach draws on the insights of modern theorists, such as Armatya Sen, who see freedom not as absence of coercion, but as agency, or the ability to exercise genuine choice and act on those choices. For Sen, the ability to achieve one’s valued goals is essential to this conception of freedom. He has developed the positive notion of freedom as agency through his ‘capability theory’. This theory stresses the importance of considering the extent to which people are actually able to exercise their choices, rather than simply having the formal right to do so. In other words, it is crucial to distinguish between goals individuals might wish to choose
section affects a right (if any) to rescind or cancel, or to recover damages for, a contract for the provision of commercial sexual services that is not performed. Section 18: Refusal to work as sex worker does not affect entitlements: (1) A person's benefit, or entitlement to a benefit, under the Social Security Act 1964 may not be cancelled or affected in any other way by his or her refusal to work, or to continue to work, as a sex worker (and, in this case, that work is not suitable employment for that person under that Act); (2) A person's entitlements under the Injury Prevention, Rehabilitation, and Compensation Act 2001 may not be lost or affected in any other way by his or her being capable of working as a sex worker if he or she refuses to do, or to continue to do, that kind of work; (3) In this section, refusal means a refusal to do this kind of work in general, rather than a refusal of a particular job or at a particular time. 274 Jamieson, supra note 267 at 229. 275 Ibid at 232. 276 Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (New York: Oxford University Press, 2008) at 11-12. 68
(‘functionings’), and those which are feasible for them to actually choose (‘capabilities’).277 Capability is therefore the substantive freedom to achieve alternative functioning combinations. The reason why it may not be feasible for people to achieve the valued functionings they would otherwise have chosen can be as much due to social, economic, or physical constraints, as to political interference.278 The logical conclusion of Sen’s approach is to require positive action to be taken to enhance individuals’ capability sets. However, it is Nussbaum who transfers the conceptual apparatus of capability into the realm of human rights law. She argues for a threshold level of each capability below which truly human functioning is not available. The social goal is to get citizens above this capability threshold; correspondingly, the rights she advocates give rise to a series of positive duties on the State to ensure the threshold level of functioning.279 This approach is strengthened by the recognition that the distinction between non- intervention and positive action is itself elusive. Poverty is always capable of being construed as an act of deliberate intervention by the State: it is the legal regime which creates property rights and protects them from theft and invasion.280 Therefore, as Sunstein argues, if homeless people lack a place to live, it is because the rules of property are enforced.281 Thus, whether poverty is construed as deliberate State intervention, or as an obstacle to freedom which the State has the means to remove, it remains true to say that positive action is required from the State in order to ensure that people can exercise their human rights.282 To those who hold that this vision of human rights and of the role of the State is not morally neutral, Fredman responds that the assumption that it is in fact possible for the State to remain value neutral is problematic. In practice, the illusion of neutrality disguises particular value commitments. The basic premise that individuals should be free to pursue their own self- interest as determined solely by themselves is presented as a neutral principle but it embodies a particular understanding of human needs and aspirations, one which downgrades collective goals and interpersonal relationships and ignores the ways in which choice is constrained by individuals’ initial endowments, their ability to effectively mobilize resources at their disposal
277 Amartya Sen, Development as Freedom (Oxford: Oxford University Press, 1999) at 75. 278 Ibid at 90-91. 279 Martha Nussbaum, Women and Human Development (Cambridge: Cambridge University Press, 2000) at 5-6. 280 Fredman, supra note 276 at 13. 281 Cass R. Sunstein, The Second Bill of Rights (Basic Books New York 2004) at 23–24. 282 Fredman, supra note 276 at 14. 69 and their access to social goods such as education and training.283 This leads Fredman to ask why we should aspire to neutrality at all. The most convincing solution to these problems, in her opinion, is that provided by Raz. He not only rejects the possibility of a neutral State, he views it as a positive attribute of the State to promote a public morality. This does not however entail the coercive imposition by the State of a particular world view. Raz recognizes that personal autonomy cannot be an individualistic enterprise. Instead, it requires an adequate range of available options, which includes the possibility of choosing mutually incompatible moral positions. Thus, Raz’s “perfectionist State” is not only consistent with a plurality of valuable and mutually exclusive forms of life, but positively requires them.284 Positive duties arising from human rights do not give governments carte blanche in their use of their power. By requiring the State to act, positive duties give no more latitude to governments than duties which require them to refrain from acting. Nor are they legitimate unless they further the goals of substantive freedom, solidarity, equality, and democracy. Thus, positive duties arising from human rights are themselves an important means of preventing the State from abusing its power. What they add to traditional doctrines of restraint is the perception that failure by the State to act can limit freedom as much as action by the State.285 In the case of prostitution, these positive duties can mean, among other things, measures to alleviate poverty, programs to enhance women’s choices inside and outside the sex trade, and initiatives to ensure the meaningful participation of prostitutes in decisions that affect them. A positive interpretation of liberty and of the role of the state from non-intervention to enhancing choices while respecting and allowing multiple conceptions of the good life is necessary to ensure prostitutes’ full enjoyment of their human rights. It would seem however that such a definition of liberty is absent from Canadian courts. As illustrated in Morgentaler286, the right to liberty only seems to be referring to the individual right to make decisions intimately affecting one’s life. Since a positive and more comprehensive interpretation of the right to security appears to be possible within Canadian jurisprudence, maybe a more complete conception of liberty to support it in a perspective of interdependency of human rights is conceivable.
283 Simon F. Deakin & Frank Wilkinson, The Law of the Labour Market: Industrialization, Employment and Legal Evolution (Oxford: Oxford University Press, 2005) at 285–86. 284 Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 426. 285 Fredman, supra note 276 at 25. 286 Supra note 5. 70
Sanda Rodgers points out that the Supreme Court in Morgentaler did not examine the potential violation of the right to equality guaranteed at section 15 of the Charter, even though the issue of abortion is clearly a women’s issue. Moreover, she writes, the decision protects a private engagement between woman and doctor, within which the impugned impediment is medical risk increased through the intervention of unjustifiable state procedure. As we have seen, only in Wilson J.’s judgement does woman approach actor, and even then she is constrained to act within her narrow “fenced” location of privacy. And there is no suggestion of state obligation to provide women with appropriate and timely access to control of reproduction so as to enhance women’s equality.287 In the next section, I will explore the right to equality in a substantive and generous manner, as I have done for the rights to security and liberty, in order to foster real changes and protections for prostitutes in a perspective of interdependency of human rights.
2.4 The Right to Equality As we have seen, the Fraser Report288 emphasized a connection between the laws dealing with prostitution and the safety and dignity of prostitutes, particularly those who are the most vulnerable. It would seem that the current special status of prostitution in the Criminal Code has not given society the protection it seeks from the harmful consequences of prostitution, and has not given prostitutes the right to dignity and equal treatment in society.289 In addition to this, the existence of special laws surrounding prostitution has resulted in the categorization of prostitutes as different from other women and men, less worthy of protection by the police, and in a general attitude that they are second-class citizens.290 Furthermore, the Fraser Report observes: Although, as we have pointed out, the law on prostitution is only enforced in a perfunctory way, it is nevertheless enforced from time to time, even in relation to activities in private. The result is that there is just enough in the way of uncertainty about the prostitute’s legal status whether on the street, using a private residence, or while employed by an escort service or massage parlour, that the individual concerned has the sense of being a legal outcast. Needless to say, the greater facility one has for operating in complete privacy and
287 Sanda Rodgers, “Misconceptions: Equality and Reproductive Autonomy in the Supreme Court of Canada” in Sheila McIntyre & Sanda Rodgers, eds, Diminishing Returns. Inequality and the Canadian Charter of Rights and Freedoms (Markham, Ontario: LexisNexis Canada Inc., 2006) 271 at 278. 288 Fraser, supra note 148. 289 Ibid at 393. 290 Ibid at 392. 71
confidence, a facility which is typically a reflection of relative wealth, the easier it is to escape scrutiny. Accordingly, the law in its operation favours those who have the resources to be discreet, while victimizing those who are not so blessed.291 These conclusions are explicit in their relation to the right to equality: prostitutes are not treated as equals by the Canadian government through the laws in place, even though prostitution is a legal activity. Moreover, the most vulnerable prostitutes are completely ignored and abandoned by the state and treated with even less dignity and less protection than the more privileged prostitutes. I thus argue that it is necessary to add the argument of equality to the debate in Bedford. In this section, I will summarize the standard of substantive equality as it is defined in Canadian jurisprudence and criticize the fact that, in this neoliberal context, the constitutional equality standard is delivering diminishing returns at the Supreme Court level. I will also explore the concept of choice in Gosselin292, its limits and negative consequences for people who sell sex, and I will advocate for a more complex and comprehensive understanding of choice. Finally, I will apply substantive equality to the reality of poverty and look at the implications for prostitution in Canada.
2.4.1 Substantive Equality: Origins and Definition The first reference to substantive equality by a Canadian feminist scholar seems to be in January 1985 when Professor Jill Vickers, a political scientist, argued at the National Symposium on Equality Rights “that the pursuit of substantive equality turns liberalism in on itself.”293 Shortly thereafter another reference appeared in the scholarly legal literature in a research paper that Professor Mary Jane Mossman wrote for the Abella Commission on Equity in Employment.294 Whether simultaneously or sequentially the term was also used in a book entitled Charterwatch that was published in 1986 but drew on papers presented at Dalhousie Law School during 1984-85. In particular, the term substantive equality appeared in the papers
291 Ibid at 533 [emphasis added]. 292 Supra note 4. 293 Sheila McIntyre, “The Charter: Driving Women to Abstraction” (1985) 6:5 Broadside 8. 294 Mary Jane Mossman, “Gender, Equality, and the Charter”, in Judge Rosalie Silberman Abella, ed, Research Studies of the Commission on Equality in Employment (Ottawa: Canadian Government Publishing Centre, 1985) 297 at 300. 72 by Colleen Sheppard, Peter Rogers and Sheila Noonan (with Christine Boyle).295 Unfortunately, none of these authors revealed their source for the phrase.296 The Supreme Court of Canada defined its substantive approach to equality and explicitly rejected a formal equality approach to section 15297 of the Charter in Andrews298 and confirmed this in Law299. Substantive equality is the judicial acknowledgement that facially neutral policies and procedures could have discriminatory disparate impacts on the social groups protected by human rights laws. It recognizes that “identical treatment of social unequals can produce inequality and that true equality requires recognition and accommodation of social, political and economic difference.”300 It replaced the coherence of formal equality, which is premised on the idea that identical treatment constituted equality. According to Colleen Sheppard, substantive equality opened the way for a new measure of equality – a measure not on procedural questions of sameness or difference of treatment, but on the harmful and disparate effects of social policy or legislation.301 Claimants must prove (1) differential treatment or effects; (2) that such treatment is based on an enumerated or analogous ground(s); (3) that such a treatment constitutes discrimination in the substantive sense in relation to the purposes to be advanced by the protection of constitutional equality.302 Discrimination in the substantive sense is defined in Law and includes 4 factors: (1) where a distinction reflects or reinforces pre-existing disadvantage,
295 Colleen Sheppard, “Equality, Ideology and Oppression: Women and the Canadian Charter of Rights and Freedoms”, at 206; Peter Rogers, “Equality, Efficiency and Judicial Restraint: Towards a Dynamic Constitution” at 169; and Christine Boyle & Sheila Noonan, “Prostitution and Pornography: Beyond Formal Equality”, at 251; in Christine L.M. Boyle, A. Wayne MacKay, Edward J. McBride, and John A. Yogis, eds, Charterwatch: Reflections on Equality (Toronto: Carswell, 1986). 296 Beverley Baines, “Is Substantive Equality a Constitutional Doctrine?” in Ysolde Gendreau, ed, La doctrine et le développement du droit/Developing Law with Doctrine (Montreal: Les Editions Thémis, 2005) 59-101 at 77-78. 297 The right to equality is defined at section 15 of the Charter as follows: (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 298 Andrews v Law Society of British Columbia, [1989] 1 SCR 143, 56 DLR (4th) 1 [Andrews cited to SCR]. 299 Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, 170 DLR (4th) 1 [Law cited to SCR]. 300 Sheila McIntyre & Sanda Rodgers, “Introduction: High Expectations, Diminishing Returns – Section 15 at Twenty” in Sheila McIntyre & Sanda Rodgers, eds, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, Ontario: LexisNexis Canada, Inc., 2006) 1 at 6. 301 Colleen Sheppard, “Constitutional Equality and Shifting Conceptions of the Role of the State: Obstacles and Possibilities” in Sheila McIntyre & Sanda Rodgers, eds, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, Ontario: LexisNexis Canada, Inc., 2006) 251 at 254; Andrews, supra note 298 at 3-4; Law, supra note 299 at paras 1-3. 302 Ibid at para 2. 73 prejudice or marginalization and (2) does not recognize and accommodate or (3) seek to ameliorate real differences of need or capacity arising from disadvantage and/or (4) denies or abridges a significant social, political or economic interest on a suspect ground, it is almost certain to be discriminatory.303
2.4.2 Substantive Equality and Neoliberal Climate: A Losing Combination Sheppard argues that substantive equality works best with a social welfare state that actively engages in redistributive policies to secure the conditions for social and economic well- being. Ironically, she adds, it was around the historical moment when the social welfare state began its decline that substantive equality emerged as a legal concept in courts and tribunals with Andrews. It may be that we are still in a predominantly neoliberal phase, exemplified by continued trends towards privatization; public policies designed to meet global competitive market demands; ideologies of increased individual and family-based responsibility for social and economic well-being; and continued questioning of big government and state redistribution.304 Nonetheless, some are suggesting that post-neoliberal public policy directions are emerging, incorporating aspects of the social welfare state tradition and dimensions of the neoliberal critique of government and state instrumentalism. This “third way”, as coined by Anthony Giddens, is characterized by a policy shift from a social welfare to a social investment state, aimed at “investment in human capital wherever possible rather than the direct provision of economic maintenance.”305 Promoting human capital means focusing on individual and community education and retraining. Jane Jenson and Denis Saint-Martin describe this trend in government policy in terms of a shift from passive spending on social protection to investments that will generate an active society and an active citizenry.306 The social investment state suggests a return to the concept of equality of opportunity associated with formal equality, and reduced concern with equality of condition in the present.
303 Ibid at paras 62-75. 304 Sheppard, supra note 301 at 255-56. 305 Anthony Giddens, The Third Way – The Renewal of Social Democracy (Cambridge: Polity Press, 1998) at 117 [emphasis in the original]. 306 Jane Jenson & Denis Saint-Martin, Building Blocks for a New Welfare Architecture: From Ford to LEGO?, online: érudit
Sheila McIntyre claims that, in this neoliberal context hostile to redistributive justice, the substantive approach to equality is in jeopardy. She notes a shifting approach to section 15 in the Supreme Court majority’s decisions: [S]ocially and politically pragmatic rather than principled; focused on the reasonableness of government policy choices and not on the effects of government action and inaction on dispossessed groups; and broad and generous, not in interpreting rights, but in latitude it extends to the legislatures.307 Although the Supreme Court still rhetorically refers to the principle of substantive equality as developed in Andrews and confirmed in Eldridge308 and Vriend309, an examination of the Supreme Court rulings regarding equality, such as Lavoie310, Gosselin311, Walsh312 and Withler313, shows increasingly disappointing results of equality claims advanced under section 15 of the Charter.314 This trend is worrisome, especially for cases involving vulnerable and historically marginalized groups of society, such as prostitutes.
2.4.3 Gosselin and the Limits of the Language of Choice Individual capabilities, human capacities and reinforcing agency are important concepts to feminist theory of equality. It is easy however to see a lack of chances, or opportunities, or capabilities as a lack of will and an intent to abuse the state’s resources, as illustrated by Gosselin. In this decision, the majority of the Court bought into the stereotypes – young people rely on social assistance because they are lazy – and agreed that the regulation was a good incentive for young people to find work.315 The ameliorative purpose of the program in Gosselin, despite the actual hardship generated, sufficed to render it consistent with equality.316 Young and other constitutional scholars have noted that several Supreme Court’s decisions, including
307 Sheila McIntyre, “Deference and Dominance: Equality Without Substance” in Sheila McIntyre & Sanda Rodgers, eds, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, Ontario: LexisNexis Canada, Inc., 2006) 95 at 96. 308 Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, 151 DLR (4th) 577. 309 Vriend v Alberta, [1998] 1 SCR 493, 156 DLR (4th) 385. 310 Lavoie v Canada, 2002 SCC 23, [2002] 1 SCR 769. 311 Supra note 4. 312 Nova Scotia (Attorney General) v Walsh, 2002 SCC 83, [2002] 4 SCR 325. 313 Withler v Canada (Attorney General), 2011 SCC 12, [2011] 1 SCR 396. 314 Sheppard, supra note 301 at 252. 315 Gosselin, supra note 4 at paras 43 and 65. 316 Gwen Brodsky & Shelagh Day, “Women’s Poverty is an Equality Violation” in Margaret Denike, Fay Faraday & M. Kate Stephenson, Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2009) 319 at 325. 75
Gosselin, were marked by a “political imagery of the individual in which abstract individualism combined with, and often masked, traditional, conservative images of social order and moral choice.”317 Louise Gosselin fails as the neoliberal “market citizen” and it lies not with the state to compensate for this since it is her “own private moral fault to fail to support herself”. This paternalistic tough love is ignoring the damage it can cause to individuals and their capacity to “participate as full members of society”.318 The Gosselin case illustrates the limits of the language of choice. Even though “choice” has been a central issue in feminist struggles (such as the “ pro-choice” struggle for the right to abortion), this liberal concept is hurting women’s right to equality in Supreme Court’s cases. According to Diana Majury, “choice locks us into existing social arrangements and into a liberal perspective rather than offering movement through and beyond the status quo of inequality.”319 The Supreme Court is now blaming women for having “chosen” to put themselves in a situation that they later claim to be unequal whereas, according to the Court, it simply “did not work out”. This decontextualized invocation of choice fails to examine the limits on available alternatives, constraints on the chooser, conflicting motivations, interrelated potential impacts, and other factors that might affect the decision. In many section 15 Supreme Court’s decisions, there is a presumption that if one chose a situation it cannot be unequal, or that one has to live with the consequences of one’s choice, however unequal.320 Both assumptions are very problematic. Furthermore, the conflation of choice with dignity makes choice an impenetrable shield against an equality claim, because not recognizing people’s choice infringes on their dignity and does not treat them as fully autonomous and responsible.
2.4.4 A Call for a More Complex Understanding of Choice Prostitutes, like all women (and people), are both and neither victims and agents. They may not have control over broader economic circumstances, or sometimes the actual conditions of their working environment, but they can and do make choices and exercise power in their
317 Margot Young, “Blissed Out: Section 15 at Twenty”, in Sheila McIntyre & Sanda Rodgers, eds, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, Ontario: LexisNexis Canada, Inc., 2006) 45 at 61. 318 Ibid at 62. 319 Diana Majury, “Women Are Themselves to Blame: Choice as a Justification for Unequal Treatment” in Margaret Denike, Fay Faraday & M. Kate Stephenson, Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2009) 209 at 209. 320 Ibid at 210. 76 relations with clients. Sometimes the choice to engage in prostitution was made because of the lack of a better alternative, sometimes it was the first choice but the legal consequences and the violence they facilitate was not chosen. In order to take into account the multiple realities and the power dynamics within prostitution, Bouclin argues that a shift away from dogmatic positions to more nuanced intersectional and relational approaches is needed. Such approaches examine commodified sex as a continuum that spans from coercion, in the form of child prostitution, slavery, debt bondage, domestic and international trafficking; to survival sex, because of drug dependence or addiction, financial need or dire poverty, as means of escape from abusive families or partnerships; to opportunistic prostitution, which is an economic decision to work in prostitution.321 Understanding the choice to sell sex as one that is made within limited alternatives allows for a more contextual understanding of autonomy that allows for ambivalence and negotiations as well as an understanding that choice does not amount to agency when made in the face of unpalatable options. It also highlights that despite the fact that prostitutes are located within marginal legal, social, economic, and political spheres, they do resist violence, ‘talk back’ to stigma, and subvert legal regulation.322 There exist various realities to prostitution and it is a disservice to see prostitutes in exclusive terms, at either end of the control spectrum, as always and only agents or as always and only victims. While Majury would like to get rid of the concept of choice, she does not believe it is possible in any practical sense as it is deeply connected to our history of liberal democracy.323 Thus, she argues, we are forced to work with it and critique it: The availability of any choice must be examined in its context which would include factors pertaining to race, class, gender, (dis)ability, age, or sexual orientation that may limit or coerce “choice” or render a choice in effect unchoosable. Another aspect of the context of the availability of choice is the other choices that are precluded or enhanced by the availability of this choice […]. And the impact of the choice must be examined, not just the impact on the individual or the disadvantaged group(s) to which she belongs but on other disadvantaged groups as well.324 As we have seen above, and according to Majury, “we have moved beyond a simplistic dichotomy between individual liberty to choose and government interference with that liberty to
321 Bouclin, supra note 15 at 18. 322 Ibid. 323 Majury, supra note 319 at 215. 324 Ibid at 216. 77 questions about the potential, and/or obligation, for the state and other governing apparatuses, to facilitate meaningful choice.”325 Nevertheless, she explains that the attraction to the liberal concept of choice, because it seems simple, empowering and positive, persists and hinders critical scrutiny. Thus, she argues for a more complex understanding of choice, rather than this dichotomized portraying of women as either passive and helpless victims not responsible for their choice or autonomous, empowered agents responsible for the choice they make. Fredman writes that economists generally understand ‘choice’ in highly individualistic terms, denoting the subjective preferences of individuals, which ought to be accepted and respected as essential to their autonomy. This however ignores the social nature of choice itself.326 In particular, preferences might themselves be a result of deep-seated constraints within the social structure, writes Nussbaum.327 Individuals are liable to adapt their preferences to their existing circumstances, to what they perceive is possible, and to power structures in which they find themselves. In addition, preferences might directly reflect initial legal and social endowments, instead of vice versa. People who do not have a legal right in the first place might not express a preference for it because it is outside of their field of possibility. Preferences also depend on available information, and are highly malleable, deliberately so in a consumer society which depends on advertising.328 The recognition of adaptive preferences reinforces the argument in favour of positive duties on the State. In order to genuinely enhance freedom of choice, preferences should not necessarily be taken as given. Instead, the State’s duty is to increase the range of feasible options. The way forward is to provide the conditions which make it possible for individuals to form their choices in genuine freedom as well as act on them. The positive obligation on the State is to secure such conditions, without imposing any particular set of choices on individuals. In this way, the positive obligation can promote freedom and equality by widening spheres of choice without being despotic or paternalistic.329 In the next section, I will explore concrete implications of the real application of the concept of substantive equality to the issue of prostitution in Canada.
325 Ibid at 214. 326 Fredman, supra note 276 at 15. 327 Nussbaum, supra note 279 at 65. 328 Cass R. Sunstein, “Preferences and Politics” (1991) 20:1 Philosophy and Public Affairs 3 at 7. 329 Fredman, supra note 276 at 16. 78
2.4.5 Substantive Equality to Alleviate Poverty: Implications for Prostitution As we have seen, one main factor constraining choices, especially in matters of work, which prostitution is no exception, is poverty. While there is no free-standing or enforceable right to be free from poverty in Canada (or anywhere else for that matter), there are several related norms that strengthen the relationship between poverty, exclusion and rights which we could use to foster changes around prostitution in Canada. Moreover exclusion because of poverty is becoming a justiciable issue before the courts (Corbiere330, Egan331, Gosselin332, Gwinner333, Granovsky334, Halpern335, Law336, M. v. H.337 and Vriend338).339 Gwen Brodsky and Shelagh Day argue that a substantive approach to equality under the Charter requires recognition of positive constitutional rights compelling governments to ensure that everyone has adequate food, clothing, and housing. They are not advocating for an amendment to the Charter but putting forward an interpretive argument. They qualify the hierarchy between civil and political rights and economic, social and cultural rights as an outmoded constitutional paradigm which clings to a negative rights model of constitutional rights that is incompatible with a substantive conception of equality. According to the authors, substantive equality, by definition, requires governments to take positive steps towards remedying group disadvantage, including the poverty of women.340 A central cause of poverty is entrenched patterns of discrimination. But poverty also exacerbates and deepens the inequality of members of already disadvantaged groups. Poor women are greatly affected by sex inequality. As the facts of Gosselin showed, poverty sometimes leads women to resort to “survival sex” to get by.341 The authors add that poor women are more vulnerable to rape, assault, and sexual harassment because they live in unsafe
330 Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203, 173 DLR (4th) 1. 331 Egan v Canada, [1995] 2 SCR 513, 124 DLR (4th) 609. 332 Supra note 4. 333 Gwinner v Alberta (Human Resources and Employment), 2004 ABCA 210, 245 DLR (4th) 158. 334 Granovsky v Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 SCR 703. 335 Halpern v Canada (Attorney general) (2003), 65 OR (3d) 161 (available on CanLII) (ON CA). 336 Supra note 299. 337 M v H, [1999] 2 SCR 3, 171 DLR (4th) 577. 338 Supra note 309. 339 Pearl Eliadis, “Inscribing Charter Values in Policy Processses” in Sheila McIntyre & Sanda Rodgers, eds, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, Ontario: LexisNexis Canada, Inc., 2006) 229 at 241. 340 Gwen Brodsky & Shelagh Day, “Beyond the Social and Economic Rights Debate: Equality Speaks to Poverty” (2002) 14:1 Canadian Journal of Women and the Law 185 at 185. 341 Gosselin, supra note 4 at para 375. 79 places, and they are not free to walk away from workplaces that are poisoned or from abusive relationships when destitution is the alternative. Poverty perpetuates women’s lack of political influence and their under-representation in governments and in decision-making. Laws and policies that perpetuate or hold in place the disproportionate poverty of women, Aboriginal peoples, people of colour, or people with disabilities necessarily engage section 15 because they maintain or reinforce the disadvantage of already disadvantaged groups. Effective protection of the groups who suffer economic, social, political and legal disadvantage in Canada requires the governments to address structural or systemic forms of discrimination and their effects.342 Finally, Brodsky and Day maintain that the section 15 guarantee of sex equality, on its own, imposes an obligation on governments to ensure that women are not denied income security adequate to meet basic needs. Their argument is that in the name of realizing women’s equality, governments in Canada must provide social programmes, and that the obligation to do so is necessarily incidental to women’s right to equality.343 This positive interpretation of the role of the state and of the right to equality, as well as of the rights to liberty and security of the person as we have seen above, can also be applied to the other marginalized groups of society, including people who sell sex. If, as abolitionists argue, prostitution is never a “real choice” because very often women (people) need the money to survive or to feed their children, the positive obligation of the state to enhance options and give access to subsistence income, such as guaranteed income for example, will be more efficient in improving their situation than criminalization. In a country as wealthy as Canada, for a government to refuse adequate social assistance to meet basic necessities to a person in need is a blatant signal that this person is not regarded as equal in worth and dignity.344
342 Brodsky & Day, supra note 316 at 330. 343 Ibid at 331. 344 Ibid at 332. 80
Conclusion In light of the information presented in the first chapter, we must conclude that the strong abolitionists and pro sex work lobbies did not contribute to transforming prostitutes’ human rights situation. What we observe is the transfer of the polarized debate from the international level to the national level in a way that impedes any real improvements to the lives of people who sell sex. Even though a lot of research has been conducted on prostitution, the Canadian government has upheld legislation, or reformed it inadequately, preferring to follow ideology than the researchers’ recommendations. It is now to the courts to settle the issue. It must also be said that the global economy characterizing our world today is affecting the general conditions of workers in all labour areas. It is granted that prostitutes are impacted by this neoliberal economic and political climate in a more severe way since they are one of the most marginalized and stigmatized groups in society. Therefore, it is imperative to complexify the issue, to go beyond moral and emotional considerations, and to rethink state repression of prostitution. In order to do so, and to hopefully rally much needed feminist support for sex workers, I suggested that in the debate around prostitution we focus on the interdependency of the rights to security, liberty and equality. It is not only possible to find a solution to the prostitution impasse, but it is necessary if our goal really is the protection and empowerment of prostitutes, and women in general. Firstly, in an attempt to fill the gaps in the conception of the right to security in Bedford345, I have borrowed from the dissenting opinion of Gosselin346 and the concurring opinion in Morgentaler347. According to Arbour J. in Gosselin, the state does have an obligation to address basic needs relating to the personal security and survival of indigent members of society. A positive right to security, in the context of prostitution and the Bedford case, could mean a minimum level of welfare, or even a guaranteed income, harsher punishments for perpetrators of violence against prostitutes, and programs to find complementary income and alternatives to prostitution (if so desired). It could also provide mandatory education and sensitivity training for all levels of government, law enforcement and emergency services staff that interact with prostitutes and make decisions that affect prostitutes and the sex industry,
345 Supra note 3. 346 Supra note 4. 347 Supra note 5. 81 sexual education in schools with a focus on gender equality and diversity, and not too restrictive immigration laws and special protections for migrant prostitutes. Security could also entail the possibility to choose to work for an agency or independently, licences that are not too costly or restrictive, zoning which allows two prostitutes to take in-calls at a single residential location and does not prohibit street prostitution entirely and, finally, a provision which specifies that prostitutes never lose their right to terminate a contract for sexual services at any time for any reason. According to Justice Wilson in Morgentaler, if either the right to liberty or the right to security of the person or a combination of both confers on the pregnant woman the right to access abortion services, the question must be examined under this angle. It would seem that criminalization of certain aspects of prostitution and even too rigid regulation can impede prostitutes’ right to security. Furthermore, for prostitutes who have no other means to meet their basic needs because of a lack of options or other factors, prostitution is the only possibility to legally earn an income. Consequently, the right to engage in prostitution becomes a matter of health and thus of security. Secondly, for prostitutes’ situations and conditions to meaningfully and positively change, other rights need to be considered and enforced. The right to liberty contained at section 7 of the Charter guarantees to all individuals a degree of personal autonomy over important decisions intimately affecting their private life, including the right to choose what occupation they will pursue. Since the evidence indicates that safety is better ensured through open business transactions, the fact that the respondents in Bedford want to maintain indoor and street prostitution impossible through laws is fulfilling another objective than the one stated, which is avoiding public nuisance. It is fulfilling an objective of moral nature, which is infringing the right to liberty. This negative conception of liberty is however insufficient in order to fully protect prostitutes’ human rights. We must go beyond the “liberty-equality dilemma” and revisit our understanding of liberty as state interference through initiatives such as adequate anti- poverty measures, programs to enhance choices inside and outside the sex trade, and forums in which prostitutes can give their input on policies and laws, around licensing and zoning for example, that will affect them, their work, their lives and their families. While the State needs to be restrained from abusing its power, only the State can supply what is needed for individuals to fully enjoy their human rights. Human rights are based on a much richer view of freedom, which pays attention to the extent to which individuals are in a position actually to exercise those rights. 82
This positive view of liberty carries with it a substantive view of equality and does not require the State to intrude on individuals’ moral decisions. It however requires a moral commitment to human rights by the State which both enables and constrains State action. Thirdly, a substantive right to equality must also be considered in order to foster change and improve the lives of prostitutes; even though it was pointed out that this neoliberal context in which we live is hostile to substantive equality court rulings. Another obstacle to the effective application of a substantive approach to equality is the concept of choice as used by Canadian courts. In many section 15 Supreme Court’s decisions, there is a presumption that if one chose a situation, it can’t be unequal or that one has to live with the consequences of one’s choice, however unequal. This definition of choice is decontextualized and ignores factors that influence all decisions, such as the limits on available alternatives, constraints on the chooser, conflicting motivations and interrelated potential impacts. Regarding prostitution, this conception of choice could mean that the state will justify not protecting prostitutes because selling sex involves risks or because it is a choice they made for their survival and because of a lack of options. Prostitutes can be both victims and empowered agents, and prostitution is best seen as a continuum that spans from coercion, to survival sex, to opportunistic prostitution. In this perspective, I contended that a real substantive approach to equality that will foster meaningful choice and provide social programmes and income security adequate to meet basic needs would be an important addition to Bedford, especially in the case of the most vulnerable prostitutes. All feminists must recognize and meaningfully support prostitutes in their struggle if we are to move beyond this abolitionist/pro sex work dilemma and meaningfully transform their situation. Most sex workers’ rights organizations advocate for decriminalization of prostitution. Yet, it is not enough. Social and economic measures are to be put into place in order to protect and enhance choices for prostitutes and women inside and outside the trade. A transformation of the current meanings of gender roles and prostitution, as well as a challenge to the racist, classist and colonialist structures of our societies are also necessary in the long-run. Nonetheless, if a legal scheme is to really be protective and to really empower prostitutes, and women in general, it must identify them as rights’ holders, rather than as always and only victims or always and only free agents, and take into account their various realities and needs through the enforcement of their rights to security, liberty and equality in a substantive manner and in a perspective of interdependency of human rights. 83
BIBLIOGRAPHY
INTERNATIONAL MATERIALS: TREATIES
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84
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FOREIGN LEGISLATION
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CANADIAN JURISPRUDENCE
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Egan v Canada, [1995] 2 SCR 513, 124 DLR (4th) 609.
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Hutt v The Queen, [1978] 2 SCR 476, [1978] 2 WWR 247. 86
Lavoie v Canada, 2002 SCC 23, [2002] 1 SCR 769.
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M v H, [1999] 2 SCR 3, 171 DLR (4th) 577.
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Vriend v Alberta, [1998] 1 SCR 493, 156 DLR (4th) 385.
Withler v Canada (Attorney General), 2011 SCC 12, [2011] 1 SCR 396.
SECONDARY MATERIAL: MONOGRAPHS
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Foucault, Michel, The History of Sexuality, Vol. 1 (New York: Random House, 1978).
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Gallagher, Anne T., The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010).
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Hanger, Art & John Maloney, The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws. A Report of the Standing Committee on Justice and Human Rights and the Subcommittee on Solicitation Laws (Ottawa: Communication Canada, 2006).
Jamieson, Beth Kiyoko, Real choices: feminism, freedom, and the limits of law (Pennsylvania: Penn State Press, 2003).
Kohm, Steven A. & John Selwood, Sex Work and City Planning: Winnipeg’s Red Light District Committee and the Regulation of Prostitution (Winnipeg: Institute of Urban Studies, 2004).
Lim, Lin Lean, The Sex Sector: The economic and social bases of prostitution in Southeast Asia (Geneva: International Labour Office, 1998).
Mackaay, Ejan, L’Analyse économique du droit – I. Fondements (Montreal, Themis & Brussels: Bruylant, 2000).
Marx, Karl, The Eighteenth Brumaire of Louis Bonaparte (Rockville, Maryland: Arc Manor LLC, 2007).
Munro, Vanessa E. & Marina Della Giusta, Demanding Sex: Critical Reflections on the Regulation of Prostitution (Cornwall: Ashgate, 2008).
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Nussbaum, Martha, Women and Human Development (Cambridge: Cambridge University Press, 2000).
Outshoorn, Joyce, ed, The Politics of Prostitution. Women’s Movements, Democratic States and the Globalization of Sex Commerce (Cambridge: Cambridge University Press, 2004).
Pheterson, Gail, ed, A Vindication of the Rights of Whores (Seattle: Seal Press, 1989).
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Ruggiero, Vincenzo, Crime and Markets: Essays in Anti-Criminology (Oxford: Oxford University Press, 2000).
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SECONDARY MATERIAL: BOOK CHAPTERS
Baines, Beverley, “Is Substantive Equality a Constitutional Doctrine?” in Ysolde Gendreau, ed, La doctrine et le développement du droit/Developing Law with Doctrine (Montreal: Les Editions Thémis, 2005) 59.
Boyle, Christine & Sheila Noonan, “Prostitution and Pornography: Beyond Formal Equality”, in Christine L.M. Boyle, A. Wayne MacKay, Edward J. McBride, and John A. Yogis, eds, Charterwatch: Reflections on Equality (Toronto: Carswell, 1986) 225.
Brodsky, Gwen & Shelagh Day, “Women’s Poverty is an Equality Violation” in Margaret Denike, Fay Faraday & M. Kate Stephenson, Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2009) 319.
Bruckert, Chris & Colette Parent, “The In-Call Sex Industry: Classed and Gendered Labour on the Margins” in Gillian Balfour and Elizabeth Comack, Criminalizing Women: Gender and (In)Justice in Neo-Liberal Times (Halifax: Fernwood Publishing, 2006) 95.
Doezema, Jo, “Forced to Choose: Beyond the Voluntary v. Forced Prostitution Dichotmoty” in Jo Doezema & Kamala Kempadoo, eds, Global Sex Workers: Rights, Resistance, and Redefinition (New York: Routledge, 1998) 34.
Eliadis, Pearl “Inscribing Charter Values in Policy Processses” in Sheila McIntyre & Sanda Rodgers, eds, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, Ontario: LexisNexis Canada, Inc., 2006) 229.
Federeci, Sylvia, “Prostitution and Globalization: Notes on a Feminist Debate” in Matt Davies & Magnus Ryner, eds, Poverty and the Production of World Politics: Unprotected Workers in the Global Political Economy (Hampshire: Palgrave MacMillan, 2006) 113.
Frug, Mary Joe, “A Postmodern Legal Feminist Manifesto” in Mary Joe Frug, Postmodern Legal Feminist (New York: Routledge, 1992) 125.
Kempadoo, Kamala, “Introduction: Globalizing Sex Workers’ Rights” in Kamala Kempadoo & Jo Doezema, eds, Global Sex Workers. Rights, Resistance, and Redefinition (London: Routledge, 1998) 1.
Majury, Diana, “Women Are Themselves to Blame: Choice as a Justification for Unequal Treatment” in Margaret Denike, Fay Faraday & M. Kate Stephenson, Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2009) 209.
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Marshall, Phil & Susu Thatun, “Miles Away. The Trouble with Prevention in the Greater Mekong Sub-region” in Kamala Kempadoo, ed. Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work and Human Rights (Boulder, CO: Paradigm Publishers, 2005) 43.
McIntyre, Sheila, “Deference and Dominance: Equality Without Substance” in Sheila McIntyre & Sanda Rodgers, eds, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, Ontario: LexisNexis Canada, Inc., 2006) 95.
McIntyre, Sheila & Sanda Rodgers, “Introduction: High Expectations, Diminishing Returns – Section 15 at Twenty” in Sheila McIntyre & Sanda Rodgers, eds, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, Ontario: LexisNexis Canada, Inc., 2006) 1.
Mossman, Mary Jane, “Gender, Equality, and the Charter” in Judge Rosalie Silberman Abella, ed, Research Studies of the Commission on Equality in Employment (Ottawa: Canadian Government Publishing Centre, 1985) 297.
Rodgers, Sanda, “Misconceptions: Equality and Reproductive Autonomy in the Supreme Court of Canada” in Sheila McIntyre & Sanda Rodgers, eds, Diminishing Returns. Inequality and the Canadian Charter of Rights and Freedoms (Markham, Ontario: LexisNexis Canada Inc., 2006) 271.
Rogers, Peter, “Equality, Efficiency and Judicial Restraint: Towards a Dynamic Constitution”, in Christine L.M. Boyle, A. Wayne MacKay, Edward J. McBride, and John A. Yogis, eds, Charterwatch: Reflections on Equality (Toronto: Carswell, 1986) 139.
Rubin, Gayle, “Thinking Sex: Notes for a radical Theory of the Politics of Sexuality” in Carol S. Vance, ed, Pleasure and Danger (London: Pandora: 1997) 267.
Sheppard, Colleen, “Constitutional Equality and Shifting Conceptions of the Role of the State: Obstacles and Possibilities” in Sheila McIntyre & Sanda Rodgers, eds, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, Ontario: LexisNexis Canada, Inc., 2006) 251.
. “Equality, Ideology and Oppression: Women and the Canadian Charter of Rights and Freedoms”, in Christine L.M. Boyle, A. Wayne MacKay, Edward J. McBride, and John A. Yogis, eds, Charterwatch: Reflections on Equality (Toronto: Carswell, 1986) 195.
Sullivan, Barbara, “Trafficking in Human Beings” in Laura J. Shepherd, ed, Gender Matters in Global Politics. A Feminist Introduction to International Relations (New York: Routledge, 2010) 89. 91
Van Doorninck, Marieke and Rosie Campbell, “‘Zoning’ street sex work: the way forward?” in Rosie Campbell & Maggie O’Neill, eds, Sex Work Now (Portland: Willan Publishing, 2006) 62.
Young, Margot, “Blissed Out: Section 15 at Twenty”, in Sheila McIntyre & Sanda Rodgers, eds, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, Ontario: LexisNexis Canada, Inc., 2006) 45.
SECONDARY MATERIAL: ARTICLES
Ahmed, Aziza, “Feminism, Power, and Sex Work in the Context of HIV/AIDS: Consequences for Women’s Health” (2011) 34 Harv JL & Gender 225.
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Aronson, Gregg, “Seeking a Consolidated Feminist Voice for Prostitution in the US” (2006) 3:3 Rutgers Journal of Law & Urban Policy 357.
Brents, Barbara G. & Kathryn Hausbeck, “Violence and Legalized Brothel Prostitution in Nevada. Examining Safety, Risk, and Prostitution Policy” (2005) 20:3 Journal of Interpersonal Violence 270.
Brodsky, Gwen & Shelagh Day, “Beyond the Social and Economic Rights Debate: Equality Speaks to Poverty” (2002) 14:1 Canadian Journal of Women and the Law 185.
Cain, Patricia A., “Feminism and the Limits of Equality” (1990) 24 Ga L Rev 803.
Dempsey, Michelle Madden, “Sex Trafficking and Decriminalization: the Defense of Feminist Abolitionism” (2010) 158 U Pa L Rev 1729.
Ekberg, Gunilla, “The Swedish Law that Prohibits the Purchase of Sexual Services” (2004) 10:10 Violence Against Women 1187.
Halley, Janet et al, “From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism” (2006) 29 Harv JL & Gender 336. 92
Hubbard, Phil & Teela Sanders, “Making Space for Sex Work: Female Street Prostitution and the Production of Urban Space” (2003) 27:1 International Journal of Urban and Regional Research 75.
Lewis, Jacqueline & Eleanor Maticka-Tyndale, “Licensing Sex Work: Public Policy and Women’s Lives” (2000) 26:4 Can Pub Pol’y 437.
Lowman, John, “Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution” (2011) 2 Beijing Law Review 33.
Kempadoo, Kamala, “The War on Human Trafficking in the Caribbean” (2007) 49:2 Race and Class 79.
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Mackinnon, Catharine A., “Pornography as Trafficking” (2004) 26 Mich J of Int’l L 993.
McClintock, Anne, “Sex workers and sex work: Introduction” (1993) 37 Social Text 1.
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Phoenix, Jo, “Governing Prostitution: New Formations, Old Agendas” (2007) 22:2 CJLS 73.
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Sanders, Teela & Rosie Campbell, “Designing out vulnerability, building in respect: violence, safety and sex work policy” (2007) 58:1 The British Journal of Sociology 1.
Scoular, Jane, “What’s Law Got To Do With it? How and Why Law Matters in the Regulation of Sex Work” (2010) 37:1 JL & Soc’y 12.
. “The ‘subject’ of prostitution. Interpreting the discursive, symbolic and material position of sex/work in feminist theory” (2004) 5:3 Feminist Theory 343. 93
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SECONDARY MATERIAL: WEBSITES
Anderson, Bridget & Julia O’Connell Davidson, Trafficking: A Demand-Led Problem? A multi country pilot study, online: Save the Children Sweden
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Dodillet, Susanne & Petra Östergren, The Swedish sex purchase act: claimed success and documented effect. Conference paper presented at the International Workshop: Decriminalizing Prostitution and Beyond: Practical Experiences and Challenges. The Hague, March 3 and 4, 2011, online: Petra Ostergren
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Jenson, Jane & Denis Saint-Martin, Building Blocks for a New Welfare Architecture: From Ford to LEGO?, online: érudit
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Platvoet, Leo, Prostitution – which stance to take?, online: PACE
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APPENDIX I
Criminal Code, RSC 1970, c C-34.
251. (1) Everyone who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.
(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and is liable to imprisonment for two years.
(3) In this section, "means" includes (a) the administration of a drug or other noxious thing, (b) the use of an instrument, and (c) manipulation of any kind.
(4) Subsections (1) and (2) do not apply to (a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the miscarriage of a female person, or (b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means described in paragraph (a) for the purpose of carrying out her intention to procure her own miscarriage, if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of such female person has been reviewed, (c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of such female person would or would be likely to endanger her life or health, and (d) has caused a copy of such certificate to be given to the qualified medical practitioner.
(5) The Minister of Health of a province may by order (a) require a therapeutic abortion committee for any hospital in that province, or any member thereof, to furnish to him a copy of any certificate described in paragraph (4)(c) issued, by that committee, together with such other information relating to the circumstances surrounding the issue of that certificate as he may require, or (b) require a medical practitioner who, in that province, has procured the miscarriage of any female person named in a certificate described in paragraph (4)(c), to furnish to him a copy of that certificate, together with 97 such other information relating to the procuring of the miscarriage as he may require.
(6) For the purposes of subsections (4) and (5) and this subsection "accredited hospital" means a hospital accredited by the Canadian Council on Hospital Accreditation in which diagnostic services and medical, surgical and obstetrical treatment are provided; "approved hospital" means a hospital in a province approved for the purposes of this section by the Minister of Health of that province; "board" means the board of governors, management or directors, or the trustees, commission or other person or group of persons having the control and management of an accredited or approved hospital; "Minister of Health" means (a) in the Provinces of Ontario, Quebec, New Brunswick, Manitoba, Newfoundland and Prince Edward Island, the Minister of Health, (a.1) in the Province of Alberta, the Minister of Hospitals and Medical Care, (b) in the Province of British Columbia, the Minister of Health Services and Hospital Insurance, (c) in the Provinces of Nova Scotia and Saskatchewan, the Minister of Public Health, and (d) in the Yukon Territory and the Northwest Territories, the Minister of National Health and Welfare; "qualified medical practitioner" means a person entitled to engage in the practice of medicine under the laws of the province in which the hospital referred to in subsection (4) is situated; "therapeutic abortion committee" for any hospital means a committee, comprised of not less than three members each of whom is a qualified medical practitioner, appointed by the board of that hospital for the purpose of considering and determining questions relating to terminations of pregnancy within that hospital.
(7) Nothing in subsection (4) shall be construed as making unnecessary the obtaining of any authorization or consent that is or may be required, otherwise than under this Act, before any means are used for the purpose of carrying out an intention to procure the miscarriage of a female person.